Tuesday, August 27, 2013

Reforming Higher Education

August 27, 2013, 1:00 p.m.

The President Has His Plan, What's Yours?

President Obama wants to reform higher education. He has a plan. It's designed to address the rampant acceleration of college tuition (well beyond general inflation rates), improve the value received by students for those tuition dollars, and provide more transparency in the comparative value between institutions. Tamar Lewin, "Obama's Plan Aims to Lower Cost of College," New York Times, August 22, 2013, p. A1. [Photo credit: multiple sources.]

He wants metrics that will include levels of tuition, graduation rates, and graduates' income.

The Administration concedes it hasn't yet worked out all the details. And well it should. But I hasten to add that I think the undertaking worthwhile. The fact there are problems doesn't mean the effort should be abandoned.

One of the problems is illustrated by the U.S. News law school rankings. (The President's proposal for law schools is that we all just lop off the third year. Voila, a one-third tuition cut! Well, not quite.) It is so easy to game the numbers that go into the rankings, as I've earlier laid out: "Random Thoughts on Law School Rankings." Want to improve a school's graduation rates for the President? Just turn your "grade creep" into a "grade walk," or better yet, "grade run." Just stop giving students Ds and Fs when they don't perform. Everybody graduates.

There's always the apples and oranges problems when comparing institutions. We have it with our Iowa City schools. Parents socioeconomic status (measured among K-12 students by who does, and does not, qualify for "free and reduced lunch") makes a difference. Children with parents in the upper 1%, or 10%, are more likely to have been read to, traveled more widely, seen more museums, concerts, theater, national parks, and provided additional intellectual and cultural stimulation in the form of academic tutoring, coaching in sports, or training in music and the arts. If those parents' children are having trouble in school, their parents are more likely to intervene on their children's behalf with teachers and administrators, and to be more effective when they do so, both because of their skill and their position in the community.

Comparing schools by comparing the test scores of students in school A with the students in school B is almost totally meaningless, without knowing more about those students. Moreover, there's not a lot of point to the exercise in a district like Iowa City's, where all the schools are of roughly equal (high) quality. But if you'd want to do it, you'd need to look at cohorts' scores -- because stability in general, and having gone through a single school, makes a difference for the student and is a better measure of the school. That is, look at the test scores of upper socio-economic kids in 6th grade, all of whom entered that school's kindergarten and have been there ever since. Do the same for the free-and-reduced lunch kids -- if you can find any, because many of those who entered kindergarten may have been homeless, or otherwise transferred from one school to another during the school years. Now, if you insist on comparing schools, you can compare those results with the comparably created results from other schools.

It was either Massachusetts or Connecticut that did a variant of this in dealing with the test scores generated as a result of No Child Left Behind. Goals were set for individual schools based on reasonable expectations given their demographics. They were then "ranked" in a sense against themselves. A school that could reasonably be expected to have test scores at the 93rd percentile, and only came in at the 78th percentile, knew it needed to make improvement. One that was projected to be at the 22nd percentile, and came in at the 38th, was praised for its performance.

The President's proposed metrics will create similar challenges.

Reduced-cost post-high school education for all is a major component in any state or nation's economic engine. All America benefited from the GI-Bill-funded college education provided veterans of World War II, and its contribution to America's post-war economic boom. California's near-free Universities of California, California State Universities, and community colleges boosted that state's economy to what would have made it the seventh largest economy in the world -- had it been a nation. The state (and city) of New York has reaped similar economic benefits from its very low cost college education system. This morning's Daily Iowan editorial hits on the same theme, "Invest in Education, Not Tax Cuts," The Daily Iowan, August 27, 2013, p. 4 ("The best way forward for Iowa is to invest in education instead of throwing money at property-tax cuts that barely affect corporations' bottom lines.").

One of the cost-saving-to-free alternatives to the present system involves the use of MOOCs ("massive open online courses"). See, "Higher Ed's Triumph of Hope Over History; Why Pay $100,000 or More for What's Available For Free?" August 18, 2013; "Higher Ed: When UI Loses Its Monopoly; From SUI to ACT," February 20, 2010.

The University of Iowa is not worried:
University of Iowa President Sally Mason said her school is moving methodically, but slowly on the latest education trend, massive online open courses, or MOOCs. . . . “Now there’s a lot of hype about it,” Mason said. “Some say the residential university will go away because we can have these MOOCs. I don’t belive that for a second.” . . . [S]he doesn’t see Iowa racing into the MOOC world.
Editorial, "New grads must create their own jobs," Quad City Times, August 25, 2013.

Meanwhile, the editorial continues, "University of Iowa Vice President of Research and Economic Development Dan Reed launched his own MOOC, about MOOCs: 'MOOCs: History, Hype and Reality.'”

I claim no expertise as an educational reformer. But I think education policy is so important for every individual, regardless of age and educational attainment, that I think everyone should not only feel free, but should be encouraged, to participate in the national discussion the President is trying to encourage.

So here's where I am at the moment in terms of cost control:

1. Do everything possible to reduce the time (and therefore cost) of obtaining a college degree.

2. Recognize community colleges are for many individuals (and our economy) the nation's best option. The old statistics I could easily find indicate that in 1999 there were 1655 community colleges with 5.6 million students -- 47% of all students enrolled in public institutions. "Digest of Education Statistics; Community College Facts at a Glance," Office of Vocational and Adult Education, U.S. Department of Education.

Many of the trades and professions for which a community college can prepare a student pay as well or better than the jobs in which many conventional college graduates end up. And they are certainly more precisely focused on what employers say they need. There's no substitute for an old fashioned liberal arts education when it comes to improving meaningful quality and joy of life. But there are many substitutes for students whose primary motive in pursuing a college degree is what they believe it will do for their income.

3. Encourage collaboration and cooperation among area high schools, community colleges, and universities to ease high school students obtaining college credits with such things as high school AP (advanced placement) courses, college CLEP (College Level Examination Program) exams, and joint enrollment (high school and community college, or university). Apply the recommendations of the National Commission on the High School Senior Year, that recognize the year can be used to much greater advantage by, among other things, getting seniors out of the high school building and into job shadowing and internships, research in the community, or community college or university courses. ("The Commission calls for moving away from a system in which the senior year is just more of the same to one in which the senior year provides time to explore options and prove knowledge and skills. Ideally, every senior should complete a capstone project, perform an internship, complete a research project, participate in community service, or take college-level courses." Id., p. 22.) Not incidentally, this approach has the added advantage of relieving "overcrowding" in the high schools.

An editorial in this morning's Press-Citizen notes that "the ties between UI and Kirkwood have strengthened quite a bit . . . a '2 Plus 2 Guaranteed Graduation Plan' [lets] students know in advance which Kirkwood credits apply directly to UI majors. The university has rented out classroom space in University Capitol Centre for Kirkwood to offer math and foreign language classes within walking distance of thousands of UI students. [All of which has created] a more collaborative, cooperative and innovative K-16 education system in Iowa." Editorial, "Voters Should Renew Levy for Kirkwood," Iowa City Press-Citizen, August 27, 2013, p. A7.

4. Cut the time at a high-priced college or university for a B.A. degree from eight semesters (10 if the student takes five years) to three. This would be similar to the "2 Plus 2" plan described above, with a modification. This low cost option would involve two years at a (comparatively low cost) community college, earning credits transferable to a university. This would be followed by the equivalent in credits of three semesters as a conventional student (with conventional costs) at the university (or conventional college). Up to the equivalent of one semester's credits could be earned by students who are able and willing to take, and be examined successfully over, MOOC courses, provided for free by other institutions. They could constitute the entire course load for a semester, or be spread over four semesters. Students would be charged for the testing/certification for the MOOC courses at the cost of administering the exams (hopefully in the $50 to $100 range, rather than the university's per-credit charge for in-classroom instruction).

I agree with UI President Mason that there will not be many high school graduates with sufficient self-discipline to put themselves through the equivalent of four years of MOOC instruction -- even if it is their only path to the college education they could not otherwise afford. But I disagree that MOOC instruction is not destined to play an ever larger role in higher education -- including at the University of Iowa -- along the lines of what I've described above. For starters, it already is, here as well as elsewhere. And increasingly, the certification/credit for completing such courses that I predicted three-and-a-half years ago is also coming into play.

Whatever we end up doing, the pressure to educate more Americans, at less cost, is coming from the White House, the State House, American parents, and students. We are going to need all the innovation and imagination we can bring to bear. My thoughts on the matter are always evolving and changing. As of this morning, they're what I've outlined above.

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Tuesday, August 20, 2013

Sleepless in Iowa City

August 20, 2013, 10:27 a.m. [Now with August 21 update.]

La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain. [Roughly translated: "The Iowa City ordinance, in its majestic equality, forbids the rich as well as the poor to sleep in the Ped Mall, beg, or watch over their possessions."]

-- Anatole France, Le Lys Rouge (1894), ch. 7, wikiquote.org

If Jesus Christ were to show up in downtown Iowa City, would he hang out with jewelers, politicians and sorority girls? Or would he hang out with people who were poor, hungry, and mentally ill? . . . [M]any of these people have serious needs – mental illness, disabilities, homelessness, hunger, unemployment, addiction, and more. They are not getting the help they need.

-- Johnson County Supervisor Rod Sullivan, "War on Poor Downtown," Sullivan's Salvos, August 20, 2013

The behaviors targeted by this ordinance aren't the problem, they're a mirror. . . . [W]hy not talk about the real problem itself?

-- Jennifer Hemmingsen, "Proposed Iowa City Ordinance Misses the Mark," The Gazette, August 18, 2013, p. A9

What’s needed, more than anything, is for all of us to wake up to the realities of mental illness and its all-too-frequent partner, substance abuse. . . . The other part isn't so much about homelessness as it is house-lessness -- actual physical structures. . . . That is called "treating the cause instead of the symptom," . . ..

-- Downtown restaurateur Kurt Michael Friese, "Treating City's 'Problem' with House-lessness," Iowa City Press-Citizen, August 20, 2013, p. A7; from his Web page, Chef Kurt Michael Friese, "My Take on the Ped Mall 'Problem,'" Real Food for All, August 16, 2013

What next? A dress code? Reservations? A hefty user fee? . . . Clearly, some people won't be satisfied until rough-hewed residents are scrubbed from downtown city streets. But no one has a right to prevent others from the peaceable enjoyment of our public space.

-- Editorial, "Enough Already -- Again," The Gazette, August 16, 2013, p. A5

The Iowa City Council will consider new ped mall restrictions at its meeting tonight [August 20]. Supporters say the ordinance will curb disruptive behavior, but some opponents say the regulations are misguided.

-- Adam Sullivan, "Proposed ped mall rules come under fire; Ordinance would fine those lying on benches during the day," Iowa City Press-Citizen," August 20, 2013, p. A1

[Photo Credit: Benjamin Roberts/Iowa City Press-Citizen.]

Each of the quoted sources is worth reading in full. That's why I've provided the links for anyone who would like to do so.

But the first of them to come to my attention (aside from the Anatole France quote that has been a favorite of mine since childhood) was Rod Sullivan's. It is also the only one not generally available online. His Sullivan's Salvos is a regularly published and email-distributed contribution to community understanding -- to which you can subscribe (for free) by emailing him at rodsullivan@mchsi.com with "subscribe" in the subject line.

So that is why I am reproducing it in full below.

Next Day [Aug. 21] Update: Rod Sullivan's piece was published the next day as Rod Sullivan, "City Needs to Stop the War on the Poor Downtown," Iowa City Press-Citizen, August 21, 2013, p. A13.

The evening of August 20 the City Council met for the first (of required three) readings of the ordinance. Its ultimate approval would appear to be a done deal.

It addresses use of public electric outlets, horizontal use of benches between 5:00 a.m. and 10:00 p.m., and amount of possessions (unless, one presumes, they are bulky purchases from those merchants who have lodged the complaints). The most vocal Council supporters are those with the self-interest of owning/operating businesses near the Washington/Dubuque Streets intersection near the north end of the Ped Mall.

Council member Jim Throgmorton noted the rush to ordinance, before thorough investigation and discussion by the Council, was a little unseemly.

Opponents arguments at the Council meeting were similar to those linked to, above. See, e.g., Adam B. Sullivan, "Council debates ped mall rules; Supporters cite inappropriate behavior; opponents say rules won't fix issues," Iowa City Press-Citizen, August 21, 2013, p. A1.

The quantity of readers' online comments following yesterday's Press-Citizen story, and the comments' emotional content, indicate that this is an issue about which many residents have strong opinions. See comments following Adam Sullivan, "Proposed ped mall rules come under fire; Ordinance would fine those lying on benches during the day," Iowa City Press-Citizen," August 20, 2013, p. A1.
There is a remarkable similarity in the reactions of these different individuals -- a public official, an award-winning journalist, a downtown business person, and I might add, myself. It is, essentially, "If you want to do something about homelessness -- and you should want to do something about homelessness -- it is far more effective, cheaper, and humane to treat the causes than the consequences."

As Rod Sullivan puts it, below, "The lack of innovative thinking here is very, very sad."

How true this is with regard to so many of the challenges confronting our public and private institutions -- and ourselves. I know that I have not been as innovative as I might have been with regard to managing my nutrition and exercise.

Based on our ACT scores, recently reported, we seem to be doing something right with K-12; but have we been as innovative as we might have been in our institutional governance, special education challenges, or bringing forward the best from every child? See, Karen W., "Thinking Beyond Buildings: Diversity Policy," Education in Iowa, August 22, 2013, IowaEd.wordpress.com.

Have the federal, state, and local governments been as innovative as they might have been in creating a full-employment economy? See, "No Such Thing as 10.2% Unemployment; I Can CCC Our Way Out of Recession," November 27, 2009.

Has higher education fully responded to the innovative opportunities (and challenges) brought on by the MOOCs (massive open online courses)? "Higher Ed's Triumph of Hope Over History; Why Pay $100,000 or More for What's Available For Free?" August 18, 2013.

It is also a challenge of sorts with regard to that portion of past Johnson County Justice Center proposals that identify the problem as "jail overcrowding" and then offer as a "solution" building "more jail cells." See, "Attorney General Holder's Lessons for Johnson County," August 12, 2013 ("our 'prison problem' is not that we have too few cells but that we unnecessarily have too many prisoners." Or, as I quote Holder as saying, "[T]too many Americans go to too many prisons for far too long and for no good law enforcement reason . . .. [With an ] economic burden — totaling $80 billion in 2010 alone — and . . . human and moral costs that are impossible to calculate.” ) (The County Supervisors are currently holding public sessions exploring the alternatives to incarceration they are already using and what additional innovative thinking may be possible.)

The same can be said regarding our "homeless problem" -- and is being said by those quoted here. Running the homeless and mentally ill out of the Ped Mall, whether into jail cells or to makeshift cardboard "homes" under our bridges, is also both the most costly, and the least effective and humane, response to homelessness.

So here (with, of course, his permission) is Supervisor Sullivan's innovative take on the issue, in his own inimitable style:

War on Poor Downtown
County Supervisor Rod Sullivan

Sullivan's Salvos
Dated August 20, 2013, distributed August 16, 2013

There is a War on the Poor going on in Downtown Iowa City. We have these about every five years. In every case to this point, these efforts have been misguided.

Look, I know something about this. For one, I spend a lot of time downtown. I understand that there are lots of people down there who are dressed badly, smell badly, and are looking for money. They are not pleasant people to be around. Their appearances are different, and can scare little kids and old ladies. I’d prefer not to sit by them.

On the other hand, I spent twenty years working in human services. I understand that many of these people have serious needs – mental illness, disabilities, homelessness, hunger, unemployment, addiction, and more. They are not getting the help they need.

I have seen former clients down there begging – people who are smart and able-bodied, yet choose this lifestyle. I know they have homes. I’m disappointed in them, and when I see them, I tell them so.

I also rarely give money to beggars. We DO give very generously to health and human services agencies – Melissa and I give ten percent of our annual income. We prefer to invest our money in attempts at systemic change. (Meanwhile, how much giving comes from those advocating for “cleaning up” downtown?)

If people break laws – littering, using drugs, assault, theft – whatever – then by all means, enforce the law. My sense is that this is less about laws being broken, and more about aesthetics.

Every previous approach has led to laws that take away civil rights. These laws are then applied arbitrarily and capriciously. Do you look scary to an old white lady? Sorry, buddy. You are coming with me!

This group of people is an easy one to pick on. They lack money and influence. They are unlikely to speak out. Sometimes they are rude and obnoxious. They do not look, sound, or behave like “we” do. Not many people will stand up for them.

As a matter of fact, I am already being criticized for this stand. I am now anti-family, anti-business, and anti-safety. All the influential people in town “want something done.” This issue ain’t a political winner – trust me! Local Libertarians? I’ve heard crickets. They are happy to let me fight this fight alone. They are only concerned with their OWN liberties; not those of the poor. I don’t even personally approve of the message the downtown street folks send; I am simply defending their right to send it.

There is also a move underway to privatize our public space. While Iowa City has more and better public space than most, it is going away. A big chunk is now being used as construction staging; interesting how that has coincided with these perceived “problems.” Privatization means the “undesirables” are on the way out; private property rights rule.

How about a more humane approach? If someone is doing something you don’t like, try asking him/her to stop. Perhaps the DTA [Downtown Association?] could invest in a social worker rather than a cop. How about a rapid re-housing program? Those have had significant success in other areas. How about a “wet” shelter? That is a definite need. Are we really this lacking in creativity? Other cities have tried many different approaches, while we default to one. The lack of innovative thinking here is very, very sad.

Secondly, let’s talk about this as it relates to my role as a County Supervisor. Some have said I have no right to comment as to what goes on downtown. I beg to differ. I’ve lived in Iowa City for 30 years. I am a resident, citizen, voter, and taxpayer.

From a County perspective – we don’t need people jailed for vagrancy. We just don’t. We have no space, it costs too much, and it does not alter behavior. So this “crackdown” that is being called for will cost the County dearly.

The County also spends a LOT of money on human services. Not as much as we should, but many times more than all cities combined. Now, if cities chose not to use TIF, thereby shutting the County out of any new taxes – perhaps we could better address the needs that exist downtown. Or perhaps the cities could use TIF money to house those without housing. Maybe the 10-15 people who cause the bulk of the problems downtown could live in the 14-story tower next door?

Finally, let’s look at this through the lens of morality. If Jesus Christ were to show up in downtown Iowa City, would he hang out with jewelers, politicians and sorority girls? Or would he hang out with people who were poor, hungry, and mentally ill?

I hope the Iowa City Downtown District and Iowa City Council address this issue in a new and better way. But I expect that instead they’ll just tell their friends about how out of touch I am.

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It is not the purpose of this blog essay to address the legal issues involved in curtailing the activities of the homeless. Indeed, as one of the "Disclaimers" in the right hand column explains, "No Legal Advice: Nothing posted on this blog is intended as, constitutes, nor should be taken to be, 'legal advice,' nor as creating an attorney-client relationship."

But I thought the following excerpt from a law review article I stumbled upon (while preparing for a class on another subject) of sufficient relevance to be worth inclusion here:
What is emerging—and it is not just a matter of fantasy—is a state of affairs in which a million or more citizens have no place to perform elementary human activities like urinating, washing, sleeping, cooking, eating, and standing around. . . . The rules of property prohibit the homeless person from doing any of these acts in private, since there is no private place that he has a right to be. And the rules governing public places prohibit him from doing any of these acts in public, since that is how we have decided to regulate the use of public places. So what is the result? Since private places and public places between them exhaust all the places that there are, there is nowhere that these actions may be performed by the homeless person. And since freedom to perform a concrete action requires freedom to perform it at some place, it follows that the homeless person does not have the freedom to perform them. If sleeping is prohibited in public places, then sleeping is comprehensively prohibited to the homeless. If urinating is prohibited in public places (and if there are no public lavatories) then the homeless are simply unfree to urinate. These are not altogether comfortable conclusions, and they are certainly not comfortable for those who have to live with them.
Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. Rev. 295 (1991); from "Trespass: Resolving Conflicts Between the Right to Exclude and the Right of Access."

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Sunday, August 18, 2013

Higher Ed's Triumph of Hope Over History

August 18, 2013, 10:30 a.m.

Why Pay $100,000 or More for What's Available For Free?

Over three years ago I addressed in this blog what seemed to me a potential challenge to the future of higher education: "Higher Ed: When UI Loses Its Monopoly; From SUI to ACT," February 20, 2013. [Photo credit: GlassDoor.com.]

In this morning's Iowa City Press-Citizen Tara Bannow reports on UI and other institutions' administrators' reactions to what is called "MOOC" -- massive open online courses. Tara Bannow, "MOOCs: Revolutionizing education or destroying brick-and-mortar universities?", Iowa City Press-Citizen, August 18, 2013, p. A1. [Photo credit: Wikimedia.org.]

Tara Bannow's excellent reporting reveals at least some higher ed administrators to be somewhere between naive and unimaginative regarding the potential impact of MOOCs: "[One administrator] said she thinks MOOCs are a tool worth experimenting with, but certainly are not the end-all in higher education. They serve a specific role, one that does not infringe upon the university’s traditional mission. . . . Likewise, [another] said although his crystal ball can’t predict where MOOCs will take higher education, nothing will replace the value of brick-and-mortar universities."

Such reactions remind one of those newspaper executives who, when to appear cool and get on board with "the digital revolution," started to give away free content online before they had a business plan for doing so.

Of course, there are differences between a MOOC education and an on-campus college education -- especially if the notion of spending four years in the nation's number one party town appeals to a student, and their parents are willing and able to pay for it.

But what if a significant part of the motivation of a student (and their parents) is to pay as little as is necessary to obtain the ticket to the jobs that pay more than McDonald's -- namely the certification called a "diploma" that can, today, only be granted by a college or university that profits from the monopoly they have over diploma granting?

What if a certificate was available for free, as well as the course content -- the college equivalent of what the GED is for high school diplomas? What if students had a choice, when buying that ticket out of the minimum-wage market, to: (a) pay $100,000 to $200,000 for an on-campus college degree, or (b) $0 for a certificate that is its equivalent in the eyes of future employers? (Many employers tell me they'd prefer the certificate over the diploma, because it would give them a better idea what an applicant can actually do.)

Why would UI students pay to get credit at Iowa for participating in MOOC education, just so they could have a "diploma" -- when they could get the course, plus a certificate, for free?

Institutions do undergo radical change -- and sometimes disappear. General Motors -- and American manufacturing generally. Newspapers. Kodak -- offered and refusing video recording, the Polaroid and Xerox processes. Swiss watchmakers, convinced digital watches would never catch on. I recall when hosting PBS' "New Tech Times," back in the '80s, getting footage at the Consumer Electronics Show in Vegas, asking an Encyclopedia Britannica booth operator when the encyclopedia would be available online -- "Never!" he said aggressively. How many kids do you know who still use their MySpace account? Have you been watching Dell's stock and laptop sales recently, while the Internet moves mobile?

What basis is there for the conviction that higher education's colleges and universities constitute the one institution that will forever remain immune to such forces?

If you are interested in more on this subject give a read to, "Higher Ed: When UI Loses Its Monopoly; From SUI to ACT," February 20, 2013.

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Saturday, August 17, 2013

Golden Silence: Privatizing and Paying for Gag Orders

August 17, 2013, 10:20 a.m.

They're Not Just for the Intelligence Community Anymore

The law provides a remedy for someone harmed by the deliberate or negligent actions of a corporation.

Such remedies create two problems for defendants. One is the money damages, sometimes in the millions. Usually, for a large corporation, that's something that can be paid for out of the petty cash drawer. Not a big problem.

The more significant consequence, especially when they intend to go on harming -- or in the case of the tobacco industry, killing -- their customer base, is the negative impact on sales from bad publicity, which can mount up to multiples of any tort damages.

This aspect of the private sector's problem is similar to what the intelligence community is now confronting with the public. There are the substantive policy questions that surround the alleged constitutional and law violations in what they are doing. But more significant for them in many ways is their having lost the ability to maintain a cloak of secrecy over their actions. If a government intends to violate the law in the way they spy on their own citizens it is really necessary to have confidentiality agreements with employees, restraining them from talking about citizen abuses -- making them subject to prosecution for "espionage" and "aiding the enemy" should they reveal the government's intent. When government agents obtain citizens' private papers from third parties, they must be able to silence those from whom they obtain the papers, insuring that they will never tell what the agent has done -- also backed up with the possibility of prosecution. An ability to intimidate those with knowledge of what's going on is central to the success of surveillance programs.

Actually, corporations have been using similar techniques for some time. Once caught red handed, they will offer to settle law suits, exacting as a part of their cash offer a gag order, forbidding the plaintiff to reveal anything about the case, the harm done by the corporation, or the amount of the settlement. [Fracking water photo credit: multiple sources.]

So I wouldn't even be writing about this subject were it not for the excellent job Stephen Colbert recently did explaining how it worked for a family suffering health damages from fracking. Here it is:

The Colbert Report
Get More: Colbert Report Full Episodes,Video Archive

[Source: "The Word -- Gag Gift," The Colbert Report, August 15, 2013.]

If you didn't know what Colbert was referring to when he spoke of "tap fires" in that video clip, this picture will clear up any confusion. It gives "firewater" a whole new meaning: water you can set on fire. [Photo credit: multiple sources.]

To remind, and put private sector gag orders in context, here is Colbert's explanation of the President's citizens surveillance program:

The Colbert Report
Get More: Colbert Report Full Episodes,Video Archive

[Source: "NSA Press Conference on Domestic Spying," The Colbert Report, August 15, 2013.]

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Friday, August 16, 2013

What America Most Highly Values

August 16, 2013, n:nn a.m.

In 23 of 50 States It's Football Coaches

Image credit: "Everything Wrong With America In One Simple Image (INFOGRAPHIC)," AddictingInfo.org

Res Ipsa Loquitur

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Monday, August 12, 2013

Attorney General Holder's Lessons for Johnson County

August 12, 2013, 8:10 a.m.

“[T]too many Americans go to too many prisons for far too long and for no good law enforcement reason . . .. [W]idespread incarceration at the federal, state and local levels . . . imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.”

-- U.S. Attorney General Eric H. Holder Jr., American Bar Association annual meeting, San Francisco, August 12, 2013; Charlie Savage, "Justice Dept. Seeks to Curtail Stiff Drug Sentences," New York Times, August 12, 2013, p. A1.

Since 1980 the U.S. population has increased by 33%; the prison population by 800%. With 5% of the world's population we have 25% of the world's incarcerated prisoners. Half of those in federal prisons are there for drug offenses. [Photo credit: ReformingArts.org.]

Holder recognizes that building more prison cells makes no sense -- economically, criminalogically, or morally.

As the Johnson County, Iowa, Board of Supervisors, reconsiders the strategy -- and hopefully substance -- of its approach to its criminal system (building more jail cells in a "Justice Center"), it could do worse than follow the lead of Attorney General Eric Holder.

Especially is this so, given Charlie Savage's report in this morning's Times (linked above) that Holder's "liberal" reforms have been supported by the likes of Republicans Jeb Bush, Edwin R. Meese III, and Newt Gingrich, in their "conservative case for reform." They've been adopted in Arkansas and Texas, with resulting savings of "hundreds of millions of dollars." Last year alone Texas cut its prison population by 5,000; Arkansas by 1,400; Kentucky is on track to move out 3,000 inmates. "[S]tate-level reductions have led to three consecutive years of decline in America’s overall prison population – including, in 2012, the largest drop ever experienced in a single year," Holder said. "From Georgia, North Carolina, and Ohio, to Pennsylvania, Hawaii, and far beyond – reinvestment and serious reform are improving public safety and saving precious resources. Let me be clear: these measures have not compromised public safety. In fact, many states have seen drops in recidivism rates at the same time their prison populations were declining."

Of course, all agree they are only talking about inmates who pose no threat of violence to others. Drug users who are non-violent, and not members of gangs or dealing cartels.

Savage cites two examples of reforms from Holder's speech: "increase the use of drug-treatment programs as alternatives to incarceration, and expand a program of 'compassionate release' for 'elderly inmates who did not commit violent crimes and have served significant portions of their sentences.'” There are many more. When the full text of Holder's speech is available, a link will be provided from this blog essay. Here it is: "Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association's House of Delegates,"San Francisco, Monday, August 12, 2013. [Photo credit: multiple sources.]

[Video credit: Produced by AFP (L'Agence France-Presse, Paris), powered by Newslook, provided by Des Moines Register.]

Essentially, Holder and the conservatives are focusing on the factors that have caused our excessive incarceration rates, with their adverse economic and other consequences. It's not rocket science. We can reconsider, and reduce, the number of non-violent human behaviors now legislated as "crimes;" have more lax law enforcement of such laws still on the books, focusing law enforcement efforts on the most serious and violent crimes; prosecute fewer of those arrested; speed the process for those booked and awaiting court proceedings; punish with alternatives to incarceration, such as drug and mental health courts, monitoring with ankle bracelets, community service; shorten the terms of those who are imprisoned; and "compassionate release" of the harmless elderly.

During a time of partisan bickering over seemingly everything, these reforms are something Democrats and Republicans, red states and blue states, conservatives and liberals, Libertarians and Greens, can all agree on.

I'd like to see Johnson County -- and Iowa -- be even more progressive and innovative with its penal policies. But at a minimum, can't we at least aspire to be the equal of Texas and the "conservative case for reform"?

So has Holder outlined a recipe for Johnson County, the details along our path to the rational reforms that will reduce our jail population? Of course not. As the nation's Attorney General he needs to have a little broader focus -- although many of his proposals are directly and specifically applicable to us.

What Holder definitely can teach us is a much more universally applicable lesson. It is his willingness to "take it from the top," to put "everything on the table" and explore best practices (whether from other states, or nations), to use "the literature" and experience of others, to apply the analytical intellectual ability and willingness to see that our "prison problem" is not that we have too few cells but that we unnecessarily have too many prisoners, to say with one of his predecessors "Some see things as they are and ask 'why'? I dream of things that never were and ask 'why not'?" The fact that he can't pass laws, he has to get Congress to do that, was treated not as an impenetrable barrier, a reason to always say "No" to innovation, but rather as just a challenge, a reason to search for alternative ways up the mountain. As the SeaBees' motto had it during World War II, "The difficult we'll do right now, the impossible will take a little longer."

Like the U.S. Attorney General, our Johnson County Supervisors, County Attorney, and Sheriff don't have infinite flexibility to change things either. Some County reforms will require action by Congress or the Iowa Legislature. Some will require consensus building among the City Councils and police departments within Johnson County, as well as the University of Iowa.

But we can model our approach on his.

Thankfully, an early effort of the Supervisors and County Attorney to produce such a document already exists. "Jail Alternatives: Prevention, Diversion, Expediting, and Recidivism Reduction Efforts," April 2013. It deserves further research, imagination, organization, and presentation -- exploring best practices from countries with both less crime and less incarceration than the U.S., as well as other American states and counties. A document focused solely on what's being done, and will be done, to reduce the jail population, a document stripped of defensive language or arguments addressed to a specific structure and its location (which could be laid out in other documents if the proponents think it advantageous to do so). For those reforms beyond the power of the Supervisors to impose unilaterally, they should pledge to make specific and measurable efforts to do what's necessary to bring them about by working with others.

Such a document will have to be, as well as appear to be, a sincere, genuine effort to reduce the number of incarcerated individuals in Johnson County to the bare, essential minimum. Convince the voters that the Supervisors have done absolutely everything in their power to minimize the jail population, and that they are pledged to work with others to do more, and such a document would not only be a monumental contribution to the creation of the best criminal justice system of which we are capable, it might also be just enough to tip the next vote to the necessary 60% approval by the voters.

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Friday, August 09, 2013

Lavabit Confronts "Complicit or Close?" Levison Closes

August 9, 2013, 3:30 a.m.

This series includes:"Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

We don't know much about the extent to which American companies have been complicit in the NSA's spying on American citizens. They are legally prevented from telling us, and have requested permission from the government to do so (but have consistently been denied their requests). Yesterday the owner of one such company, confronted with, as he put it, the choice "to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit," chose the latter. Here is the full text of his letter, posted on Lavabit.com, followed by some relevant stories and hundreds of comments. Hopefully, this courageous -- and costly -- decision of his, and the worldwide interest in, and support of, his case will help to bring these issues to a rational, and constitutional, conclusion. -- N.J. [Photo credit: Ladar Levison's Facebook page photo]

Letter to Customers from Lavabit Owner Ladar Levison

My Fellow Users,

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.

This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

Ladar Levison
Owner and Operator, Lavabit LLC

Defending the constitution is expensive! Help us by donating to the Lavabit Legal Defense Fund here.
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First reported here, Xeni Jardin, "Lavabit, Email Service Snowden Reportedly Used, Abruptly Shuts Down," Boing Boing, August 8, 2013, The Guardian added a good bit to the story: "The email service reportedly used by surveillance whistleblower Edward Snowden abruptly shut down on Thursday [Aug. 8] after its owner cryptically announced his refusal to become 'complicit in crimes against the American people.' Lavabit, an email service that boasted of its security features and claimed 350,000 customers, is no more, apparently after rejecting a court order for cooperation with the US government to participate in surveillance on its customers. It is the first such company known to have shuttered rather than comply with government surveillance." Spencer Ackerman, "Lavabit email service abruptly shut down citing government interference," The Guardian, August 9, 2013.

Comments on the Guardian's story, almost exclusively supportive, increased another couple of hundred while I wrote this. You can go directly to them here.

The New York Times, also had a report, including Silent Circle's voluntary shut down: "A Texas-based company called Lavabit, which was reportedly used by Edward J. Snowden, announced its suspension Thursday afternoon, citing concerns about secret government court orders. By evening, Silent Circle, a Maryland-based firm that counts heads of state among its customers, said it was following Lavabit’s lead and shutting its e-mail service as a protective measure. Taken together, the closures signal that e-mails, even if they are encrypted, can be accessed by government authorities and that the only way to prevent turning over the data is to obliterate the servers that the data sits on." Somini Sengupta, "Two Providers of Secure E-Mail Shut Down," New York Times/Bits, August 8, 2013.

The Washington Post reports, among other things, that the NSA's invasion of formerly secure cloud services could cost American business as much as $35 billion. (Of course, Amazon's Bezos, now the owner of the Washington Post, is the owner of one of the nation's largest cloud service providers.)

"Silent Circle’s business is based on promising absolute confidentiality to its clients. 'There are some very high profile, highly targeted groups of people' among the firm’s customers, says Silent Circle CEO Mike Janke. 'We felt we were going to be targeted, without a doubt. We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now,' the company wrote in a Thursday blog post. 'We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.' . . . One recent estimate suggested that U.S. companies could lose as much as $35 billion as fears of NSA surveillance lead foreign companies to cancel their contracts with U.S. cloud service providers." Timothy B. Lee, "Another e-mail service shuts down over government spying concerns," Washington Post, August 9, 2013.

The Wall Street Journal's brief story notes that "In 2011, a telecom company fought the Federal Bureau of Investigation in court over a request for customer records. That same year, Sonic.net, a Santa Rosa, Calif.-based Internet provider, also fought a court order on a WikiLeaks supporter." Danny Yadron, " Snowden’s Email Service Shuts; SnowdenMail is No More," Wall Street Journal,. August 8, 2013.

In addition to which, the New York Times added its editorial voice today to criticism of the NSA's spying on Americans generally: "Apparently no espionage tool that Congress gives the National Security Agency is big enough or intrusive enough to satisfy the agency’s inexhaustible appetite . . .. Time and again, the N.S.A. has pushed past the limits that lawmakers thought they had imposed . . . guaranteed by the Constitution. . . . [I]it copies virtually all overseas messages . . . then scans them to see if they contain any references [that] might have a link to terrorists. That could very well include . . . family members expressing fears of a terror attack. Or messages between an editor and a reporter who is covering international security issues. Or the privileged conversation between a lawyer and a client who is being investigated. Data collection on this scale goes far beyond what Congress authorized . . .. [T]his practice . . . is unquestionably the bulk collection of American communications . . .. Despite President Obama’s claim this week that 'there is no spying on Americans,' the evidence shows that such spying is greater than the public ever knew." Editorial Board, "Breaking Through Limits on Spying," New York Times, August 9, 2013, p. A18.

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Tuesday, August 06, 2013

A Simple Matter to Drag the People Along

August 6, 2013, 9:00 p.m.

This series includes:"Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

"Don't it always seem to go/That you don't know what you got 'til it's gone"

-- Joni Mitchell, "Big Yellow Taxi"

Naturally, the common people don't want war; neither in Russia, nor in England, nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. . . . [T]he people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.
-- Nazi leader (second to Hitler) Herman Goering, April 18, 1946, quoted in Gustave Gilbert, Nuremberg Diary (1947), confirmed by Snopes.com.

We are in the process of losing one of our most precious rights as Americans; one our nation's founders fought the Revolutionary War to obtain for us: our rights to privacy guaranteed in the Fourth Amendment. See, "The Future of Surveillance, and How to Stop It," August 4, 2013. [Photo credit: Gregory Johnson.]

Make no mistake, it should be obvious that no American, including myself, treats casually the possibility of another 9/11. (Though now 50%, including myself, believe that eliminating every destructive, violent act, regardless of significance, is neither possible nor worth further loss of Americans' privacy rights.) And clearly, I am not saying that there will not be any terrorists' acts during the remainder of this week. How on earth could I know? There may be.

But I find this last weekend's rush to embassy closings throughout the Middle East and Africa very troubling.

1. The timing was suspicious. Having barely avoided passage of a Congressional bill restricting the NSA's domestic surveillance of Americans, only hours later this new, unspecified, terrorist threat -- primarily abroad -- offered the opportunity to brief all of those who had voted for the bill, saying in effect, "See, we told you how well the NSA's surveillance programs work and protect Americans' safety." ("Some analysts and Congressional officials suggested Friday that emphasizing a terrorist threat now was a good way to divert attention from the uproar over the N.S.A.'s data-collection programs." Eric Schmitt, "Qaeda Messages Prompt U.S. Terror Warning," New York Times, August 3, 2013, p. A1. Never mind that this newly found threat abroad, and the surveillance that uncovered it, is totally unrelated to the domestic surveillance that produced the nation's uprising of opposition and the bill for which those legislators had just voted. As the New York Times editorialized today, "No one has questioned the N.S.A.’s role in collecting intelligence overseas, but the debate is about domestic efforts to vacuum up large volumes of data on the phone calls of every American that are legally questionable and needlessly violate Americans’ rights. A threat from Al Qaeda, no matter how serious, should not divert attention from a thorough investigation of the domestic spying."

2. Governments, including ours, are notorious for manipulating their population with fear. Struggling to find a reason for invading Iraq, the Administration came up with a number of scary assertions, all of which proved to be false -- that Saddam Hussein had weapons of mass destruction, was an ally of al Qaeda who helped plan 9/11, and that he had aluminum tubes for purposes of building atomic weapons. They were following Goering's advice (quoted above) to "tell them [the people] they are being attacked," up to and including, as Condoleeza Rice put it on CNN, September 9, 2002, "We don't want the smoking gun to be a mushroom cloud." Bill Moyers, "Buying the War," Bill Moyers' Journal, April 25, 2007.

3. The supposed threat was so general as to be worthless. "Something is going to happen, somewhere, sometime this week -- maybe as soon as Sunday," we were told. How helpful is it to know that there may be a suicide bomber outside an American embassy somewhere in Africa, or a train derailed in France, or hackers into the power grid causing a blackout throughout the Midwest -- or something else we can't imagine at a place we'd never suspect? What are we supposed to do with that information? Isn't that now true of every day of every week? We've been living with that, and most folks have been going about their business -- with the realization that more pedestrians are killed each year than died in the 9/11 disaster. Aside from scaring people, and gaining support for NSA domestic surveillance, what was the point?

4. Isn't it more likely this was what's called "rabbit chatter"? The intelligence community talks of "chatter," meaning what their surveillance picks up as cell phone conversations or text messages. But the terrorists -- especially their top leaders ["Ayman al-Zawahri, who succeeded Osama bin Laden as the head of the global terrorist group, and Nasser al-Wuhayshi, the head of the Yemen-based Al Qaeda in the Arabian Peninsula," Eric Schmitt and Mark Mazzetti, "Qaeda Leader's Edict to Yemen Affiliate Is Said To Prompt Alert," New York Times, August 6, 2013, p. A1.] -- did not need Edward Snowden to tell them this was going on. They are many things, including evil. But they are not dumb. They have work-arounds, including couriers, for carrying on communication among themselves when they don't want to let the NSA in on their plans.

When they do let us listen it's usually deliberate, and designed to mislead us. Indeed, in this instance, concerned that our intelligence might miss their messages, "the Qaeda leader, Ayman al-Zawahri, posted on jihadist forums on Tuesday [August 30] . . . his address [calling] for attacks on American interests in response to its military actions in the Muslim world and American drone strikes in Pakistan and Yemen" -- something we could have found out with a $200 used laptop rather than a multi-hundred-billion-dollar NSA. Eric Schmitt, "Qaeda Messages Prompt U.S. Terror Warning," New York Times, August 3, 2013, p. A1. (Our "military actions," not incidentally, have been an enormous recruiting program for AQAP (Al Qaeda in the Arabian Peninsula), which has seen the number of volunteers increase after every drone strike.)

The intercepted messages were most likely their "rabbit chatter" -- as in, "Oh, look at the cute rabbit!" -- designed to take our eye off of the ball, cause the U.S. government to spread the terror amongst us, and save Al Qaeda the cost of the airline tickets to send their terrorists here -- kind of a win-win from their perspective. We should not be dismissive, or otherwise find their rabbit chatter reassuring. After all, it just means they're planning on carrying out something else while we're busy gearing up for embassy bombings in the Middle East or Africa. But it does mean it's highly unlikely they are going to risk telling us their plans.

5. The media's reaction was frightening. Most newspapers and TV programs fell in line as propagandist cheerleaders, repeating the Administration's line with great solemnity and alarm, without a whisper from reporters -- or the opportunity for guests -- to express either skepticism or even ask serious questions about what our government was doing. It's Iraq all over again. As Bill Moyers observed in 2007 about the media's role in that war, "Four years ago this spring the Bush administration . . . plunged our country into a war . . .. The story of how high officials misled the country has been told. But they couldn't have done it on their own; they needed a compliant press, to pass on their propaganda as news and cheer them on. . . . [T]he story of how the media bought what the White House was selling has not been told in depth . . .. As the war rages into its fifth year, we look back at those months leading up to the invasion, when our press largely surrendered its independence and skepticism to join with our government in marching to war." Bill Moyers, "Buying the War," Bill Moyers' Journal, April 25, 2007.

6. The government's double standard hypocrisy doesn't build trust. Have you noticed? Our government has leaked that it is monitoring the Al Qaeda leadership, by name (see 4, above), that it includes messages between Pakistan and Yemen, the time it received the messages in question, and their content. So far as I have read, there has been little to nothing written about the possible risk to our national security, and the effectiveness of NSA programs, from these revelations.

Compare this to the reaction to Edward Snowden's revelations. He carefully did not reveal such details; he was concerned about domestic surveillance programs relatively unknown to the public (and, as it's turned out, many senators and members of congress. If I recall correctly, he said little if anything about our foreign surveillance of Al Qaeda operatives.

The former, the government's revelations, may well have caused serious damage to the real efforts to protect us from terrorism. Whether you consider Snowden a hero or a criminal, it's hard to deny that his revelations did not risk that kind of damage.

And yet, those providing the government's revelations are apparently not going to confront even criticism, let alone prosecution. Meanwhile, those in the intelligence community, and their apologists in Congress, while silent about the government's leaks, describe Edward Snowden as a "traitor," engaged in "treason," who ought to be imprisoned for life if not put to death.

What is the consistent theme here?

It seems to me it relates to the impact on the Administration's, and intelligence community's, public relations. Revelations that embarrass the government will be considered "treason" (for example, that the government has withheld from the American people the extent to which it is spying on them). Those that demonstrate how wonderful our surveillance programs are working to protect us from terrorism (deceptively suggesting the unrelated domestic surveillance programs are equally valuable) will be considered "patriotism."

7. More bizarre, inexplicable inconsistency further challenges government's credibility. If there really is a potential danger to all U.S. embassies in the Middle East and Africa, warranting their closing and protection of their employees -- a matter as to which I don't express an opinion -- why, oh why, would our embassies in the two countries where we are at a stage of "war" be exempt??!! "The United States is to keep some of its embassies in North Africa and the Middle East closed until the end of the week as a precaution due to a possible al-Qaeda terror threat. Yesterday [Aug. 4] 21 diplomatic posts were shut . . .. However US embassies in Kabul, Baghdad and Algiers will reopen today [Aug. 5]." "Terror Threat Keeps Some U.S. Embassies Closed Until Saturday," Euronews, August 5, 2013.

8. "Do unto others . . .." Imagine for a moment that the roles were reversed. Imagine that Canada was letting Al Qaeda have bases for drones -- or unable to prevent them. Imagine that Al Qaeda was targeting our leaders -- pick your favorites: Senators and members of Congress, the President, Joint Chiefs of Staff, football coaches, hedge fund managers, whoever you feel closest to. Imagine that, in the process, they ended up killing, probably unintentionally, members of your family, or your church, or your football team. Can you understand why what we are doing in Yemen -- as I write this -- is increasing, much faster than it is decreasing, the number of Yemenis who join AQAP, but the far greater numbers who simply seek revenge against us?

As I write this, I am sitting in the room where I lay on the floor, my head in the radio speaker, December 7, 1941, listening to the news that the Japanese had bombed Pearl Harbor, while my father brought me the globe, spun it, and pointed out Hawaii -- perhaps in an effort to reassure me it was farther away than Cedar Rapids. We may be better off these days, in a way, not accepting on blind faith everything our government tells us. But there were advantages to the government motivating us with a spirit of patriotism, rather than with a fear of terrorism. We came together as a nation then, fought and won a world war in less than half the time it will take us to become, and remain, bogged down in Afghanistan. There was a role for everyone in WWII, including seven-year-old boys; there was no political capital to be gained by a senator declaring his party's primary political goal was to make the president fail; then, that would have been regarded as treason.

I wish I could feel the sense of trust in my government this evening that I felt 70 years ago, but I just can't.

# # #

Sunday, August 04, 2013

The Future of Surveillance, and How to Stop It

August 4, 2013, 3:30 p.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

The speech was videotaped by Aleksey Gurtovoy, embedded in speech text below, and by Julie Spencer of Iowa City's Public Access Television (PATV). An edited version was scheduled to be cablecast on the Iowa City PATV channel, 6:30 p.m., August 24, 31, and September 7, and at 12:00 noon on August 28, and September 4 and 11. That version is available on YouTube as "NSA Restore the Fourth Rally in Iowa City August 4, 2013," Newsline Iowa City, and here:

Excerpts appeared within local TV station KGAN-TV2 CBS' newscast of the event, "Anti-Spying Rally Targets NSA," August 4, 2013.

The Future of Surveillance, and How to Stop It
Text of Nicholas Johnson's Remarks
1984 Day: Restore the Fourth's Nationwide Action Against the NSA’s Unconstitutional Surveillance
Ped Mall, Iowa City, Iowa
August 4, 2013, 12:00-2:00 p.m.

It has been 64 years since George Orwell’s classic novel, 1984, was published in 1949.

“George Orwell was an optimist,” once a humorous line, is today a terrifying reality.

As a law professor, I’m used to speaking for entire semesters at a time. Aleksey Gurtovoy has requested a short course of 20 minutes.

That’s a tough assignment, given the legal and policy issues regarding the NSA’s spying.

Let’s start with a story: how the Fourth Amendment came to be.

[Photo and video credit: Aleksey Gurtovoy.]

Once upon a time, in a land far away, a sheriff broke into the home of a Mr. Semayne.

It was 1604, and the British judge told the King that was a no-no. The court’s opinion declared, “The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose” – more commonly repeated as, “an Englishman’s home is his castle.”

In a later case, Entick v. Carrington, the British court examined the search warrant and declared it overly broad, because it authorized the taking of all of Entick's papers, not just those involving criminality. Moreover, it said, the warrant lacked probable cause for any search.

Those principles found their way into the Fourth Amendment to our Constitution, finally ratified in 1791. It provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Clearly, early British law and our Fourth Amendment contemplate our right to a zone of privacy. It is not an absolute right. But it can only be breached by the government if the search is "reasonable," supported by "probable cause" to believe that we have engaged in wrongdoing, and that what is being sought can be "particularly described."

So what was the problem?

Before we had a Constitution, the King considered colonists to be taxpaying British subjects. His tax officials, sent to collect from American merchants what British law said they owed, wanted to be able to look in all homes and businesses for smuggled goods.

To legalize these searches, in 1660 the English Parliament authorized the use of "writs of assistance" -- "assistance" in the sense of a sheriff, say, assisting the customs officials. The net effect was to eliminate the need for a search warrant, thus making the writ of assistance a "general search warrant."

These general search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause."

Are you beginning to connect the dots?

You see, the NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th – those British “general search warrants.”

The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for. And so it is that, 224 years later, an ever-increasing number of Americans – now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.

It has proven very difficult for the public, media – and even our elected officials – to find out basic facts about NSA surveillance.

As New Mexico Senator Tom Udall has observed, “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.”

Our task is made even more difficult by intelligence officials’ willingness to flat out lie. When asked by Senator Ron Wyden whether the government was collecting the meta data from citizens’ phone calls, Director of National Intelligence James Clapper responded simply, “No, sir.” Others, with scarcely more subtlety, speak in terms deliberately nuanced to deceive the public and media.

Measured by any rational benefit-cost analysis, what the government is doing to American citizens in the name of protecting us from terrorism is wildly overreaching. Since 9/11 the overwhelming percentage of deaths from terrorists has been inflicted on our uninvited military personnel in foreign countries, where our presence has both increased recruitment of terrorists abroad – while saving terrorists the cost of airfare to the U.S.

Our intelligence services’ spokespersons are asked to identify instances in which surveillance of Americans was the sole contributor to preventing violence. They struggle, dissemble, mention something between one and 13 possible instances – for which they refuse to provide details.

Moreover, the programs aren’t always effective. Alerted to the Boston bombers, they failed to connect the dots.

Even if you don’t care about personal privacy, consider the money and personnel devoted to surveillance of American citizens. Those costs are clearly grossly disproportionate to any benefits – especially when compared with other programs.

If the government was truly concerned about the preventable death of Americans, the trillions spent fighting wars abroad and conducting surveillance at home could have saved far more lives if spent on other programs. There are over 400,000 deaths a year related to smoking; 32,000 from automobile accidents; 30,000 gun deaths. Americans are 271 times more likely to die from workplace accidents than terrorist attacks. Preventable injury, disease, illness and death include such factors as obesity, lack of exercise, poor nutrition, alcohol and other drug abuse, and the failure to use seat belts and motorcycle helmets. Adequate funding of best-practices public health programs could save far more lives that surveillance ever will.

We will never totally eliminate those deaths. Nor will we totally eliminate all terrorist attacks – no matter how much surveillance we have -- whether carried out by American citizens such as Timothy McVeigh in Oklahoma City, or unsuccessfully attempted by Najibullah Zazi against the New York City subway.

Given the grossly disproportionate and ineffective expenditure on surveillance, rationalized as a life-saving effort, one need not be paranoid to wonder what the government’s real motives might be for spying on us.

It may be true there is high global risk this weekend of a massive al Qaeda attack. But it’s not unreasonable to wonder if the warnings are also efforts to support NSA surveillance.

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and spy agency Stasi, has said of our NSA, "'You know, for us, this would have been a dream come true. . . . So much information, on so many people.'” [Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.]

The Stasi's wiretapping ability went from one wiretap to 40 at a time. Compare Stasi’s efforts with the NSA. Watch Laura Poitras' "The Program," and read the alarming, Peter Maass, "How Laura Poitras Helped Snowden Spill His Secrets," in next Sunday's NYTimes Magazine, August 18, 2013, p. MM22.

The NSA has gone from a constitutional, specific search warrant for one person to the electronic equivalent of the old British general search warrant. Because the NSA has the technology that makes it possible, it wants to be able to search every American simultaneously and retain what they find.

The government tries to reassure us everything it is doing is "legal." That's not so clear. President Obama is both relying on a legal opinion interpreting the Patriot Act – but one so secret he can’t share what it says – and, according to this morning’s Guardian, refusing to permit the FISA court’s release of an opinion finding some NSA surveillance unconstitutional. Moreover, many who voted for the Act believe they did not authorize what the NSA is doing. [Glenn Greenwald, “Members of Congress denied access to basic information about NSA; Documents provided by two House members demonstrate how they are blocked from exercising any oversight over domestic surveillance,” The Guardian, August 4, 2013.]

But assume it is "legal." As I sometimes say of corporate abuses, “The problem is not so much that corporations violate the law as that they write the law.”

The issue is not whether an act was passed by Congress. The issue is whether it, and what is done in its name, is constitutional. And even if constitutional, is it right, is it moral, is it how we want to live? As Dr. Martin Luther King has reminded us, "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." [Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963.] Presumably what the Stasi did was also "legal."

Consider the potential for abuse from citizen surveillance justified as an anti-terrorism program.
• President Nixon authorized a burglary of Democratic National Committee headquarters. Can you imagine the value to a presidential political campaign of access to the phone calls and emails of an opponent?

• When surveillance was called Echelon, Europeans complained NSA was doing industrial espionage for American corporations, resulting in Airbus losing contracts to Boeing.

• What if, as the New York Times reports this morning, terrorist surveillance reveals a planned crime by a non-terrorist, as in the fictional TV show, “Person of Interest”? How can the constitutional rights of the discovered potential criminal be protected? [Eric Lichtblau and Michael S. Schmidt, “Other Agencies Clamor for Data N.S.A. Compiles; Concerns Over Privacy; Tension Abut Sharing in Cases Not Tied to National Security,” New York Times, August 4, 2013, p. A1.]
When I wrote this particular "potential for abuse" my only concern was that what I thought to be kind of a fictional insert for a revised edition of 1984 would provoke my critics into charging me with exaggeration and extremism: "Oh, Nick, now you've gone too far; you know our government would never do that!"

Little did I then imagine that my government was already doing it:

"Reuters has uncovered previously unreported details about a separate program, run by the U.S. Drug Enforcement Administration, that extends well beyond intelligence gathering. Its use, legal experts say, raises fundamental questions about whether the government is concealing information used to investigate and help build criminal cases against American citizens.

The DEA program is run by a secretive unit called the Special Operations Division, or SOD. . . .

The SOD forwards tips gleaned from NSA intercepts . . . to federal agents and local law enforcement officers.

John Shiffman, "How DEA program differs from recent NSA revelations," Reuters, August 5, 2013.
• How can natural curiosity be eliminated – as when UI hospital personal, curious as to the condition of Hawkeye football players with rhabdo [rhabdomyolysis], took an unauthorized peek at their medical records?

• Will there never be an instance of someone helping a friend going through a bitter divorce, by checking out their spouse’s email or bank records?
So, what can, what should, we do?

1. Citizens must take a stand.

The first thing we need to do is what you’ve already done by showing up today, following in the footsteps of America’s colonists in the 1770s. When the people will lead, their leaders will follow. Especially with a cautious Congress as election-focused and dysfunctional as ours, you and I are going to have to step up and take the lead.

2. Legislators, judges, and lawyers must refashion our law of privacy.

We have two, related, problems.

(1) In a world of ubiquitous surveillance -- video cameras, mail covers, collection of phone meta-data and comparable intrusions on privacy -- does a "reasonable expectation of privacy," our current legal standard, provide any protection?

(2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.

This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve it from them -- information not constitutionally available to the government without the companies’ participation.

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age.

If you give your private information to a newspaper reporter, who makes no promises, you can't complain when it appears in the paper. On the other hand, we do protect the privacy of the information you provide your doctor, lawyer, or cleric.

Today, there needs to be a third category.

Credit card data may not be entitled to the protection of medical records, but it deserves more than what you give to a newspaper reporter. It’s reasonable to demand a level of trust in the business relationships that are necessities in our economy -- such as banking and phones. We are not gratuitously handing them private information; we must do so to have their service. It is given to them for a specific and limited purpose.

Certainly, the government should not be entitled to corporate records that would have violated customers’ constitutional rights if taken directly from the person whose records they are.

3. Government surveillance of American citizens should be conducted in accord with the requirements of the Fourth Amendment.

Could the government find more potential terrorists if its computers constantly monitored the phone conversations of 300 million Americans? Probably. It could find even more if FBI agents could conduct unannounced searches of 100 million American residences whenever they chose.

But as the Fourth Amendment’s history reveals, it is a specific response to the general search warrants of its time that take the form of NSA surveillance today.

To paraphrase the old saying about gravity, “Protection from unreasonable government surveillance is not just a good idea; it’s the law” – in this case, constitutional law.

Does protecting our rights to privacy mean that some criminals and terrorists will be more difficult to catch? Yes. That’s the trade-off.

But it’s a trade-off the nation’s founders made for us, and considered a more than reasonable price to pay for our rights of privacy.

4. We need a procedure to protect whistleblowers dealing with classified information.

Whether you consider Edward Snowden a hero or a traitor, the fact is that he has enabled a national deliberation even the President acknowledges is necessary. What has followed in the form of media investigations, reporting, and opinion pieces, Congressional hearings and proposed legislation, and modestly more NSA transparency, has created a better informed public.

We have laws protecting whistleblowers from retribution for revelations of conventional governmental wrongdoing. Revelations of wrongdoing in secret, classified programs, possibly unconstitutional, are if anything even more necessary and valuable in a democratic society than revelations of garden variety, unclassified mischief.

Of course, we can’t let everyone with a Top Secret clearance reveal whatever classified information they choose. But we can provide them more alternatives than (1) ongoing complicity in classified programs they believe to be unconstitutional, and (2) leaving the country when confronting the risk of life imprisonment after being charged with espionage or the treason of “aiding the enemy.”

There are many possibilities. One would be to permit whistleblowers’ confidential revelations of concerns to any member of Congress of their choosing. There are others.

We have much work to do, starting with our standing together today here in Iowa City. Thank you for this opportunity to participate in your efforts.

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