From Zazi to Stasi

June 9, 2013, 3:00 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.

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."

# # #

Law's Losing Race With Technology

June 7, 2013, 5:25 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.

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.

# # #

Home Grown Drones

February 16, 2013, 2:15 p.m.

Drones Abroad, Drones at Home

The drones are coming! The drones are coming!

"The chickens will come home to roost," they say. So apparently do drones.

Drones Abroad

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. No frontline, or field of battle. No enemy equivalent of the Pentagon, or our Joint Chiefs. No easily identified uniforms worn by enemy soldiers. No way to produce an obvious victory, enemy surrender, armistice agreement, or even fashion an exit strategy. [Photo credit: multiple sources.]

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so.

After Lee Harvey Oswald assassinated President John Kennedy, Jack Ruby shot Oswald before he could be tried in court. Suppose the Secret Service, or Dallas local law enforcement, had reason to believe that Oswald, and then Ruby, were giving serious thought to murder. Would those suspicions (or "knowledge," if you wish) have justified assassinating Oswald -- or later, assassinating Ruby before he could kill Oswald, in order to enable a trial of the latter? Because that is, in effect, what we are doing with our drones abroad. [Photo credit: multiple sources.]

When Timothy McVeigh blew up the federal building in Oklahoma City, it was considered a crime, not an act of war. Our response? He was given his constitutional rights and convicted of that crime in a court of law. Although he had come from a community of like-minded folks in Idaho, we did not respond by bombing Idaho or otherwise killing his former "fellow travelers" (to borrow Senator Joseph McCarthy's phrase) who shared his rhetoric.

We're not paranoid. We have real enemies. What they are doing to our property and people abroad is much more than a "crime" -- even if that is what it would be if we stopped offering them targets abroad, and they had to come here to vent their hostility. But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one; see, "Department of Justice White Paper; Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force," (undated).

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home.

Drones at Home
We read that "A future in which unmanned drones are as common in U.S. skies as helicopters and airliners has moved a step closer to reality with a government request for proposals to create six drone test sites around the country. . . . Possible users at home include police, power companies wanting to monitor transmission lines, farmers needing to detect which crops need water or even ranchers counting cows. Privacy advocates worry that a proliferation of drones will lead to a 'surveillance society' in which Americans are routinely monitored, tracked, recorded and scrutinized by the authorities." Joan Lowy, "FAA takes step toward widespread US drone flights," Associated Press/Yahoo!News, February 15, 2013.

I can't say as I mind the idea of ranchers using drones to count cows. Neither does the FAA. It's just worried about drones getting in the way of piloted planes, and there are not a lot of them out where the deer and the antelope roam.

However, I'm not so thrilled about this small step forward for surveillance that is such a giant step backward for privacy.

The Fourth Amendment to our Constitution 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 . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials.

The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind.

The Fourth Amendment works pretty well when a judge is required to approve a search warrant before one person's emails can be seized and read. But how effective has it been, or could it possibly work administratively, when the government can simultaneously monitor all the emails flowing throughout the Internet?

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

The law is years, often decades, behind technology. And so it is again, with drones.

Drones abroad, drones at home. Drones offer us, like the airline captain told his passengers, "Both good news and bad news. The good news is we're making very good time. The bad news is we have no idea where we're going."

We're skiing too far over our skis, folks. Plummeting downhill before our ethicists and legislators, just droning on, can even find their snow shoes.

_______________
Excerpts from this blog essay appeared in the hard copy edition of The Gazette, in its "Blogfeed" section: Nicholas Johnson, "From DC 2 Iowa," February 24, 2013, p. A10, as follows:

The drones are coming! The drones are coming! "The chickens will come home to roost," they say. So apparently do drones.

The primary problem with drones fighting our "war on terrorism" is not so much the technology as the absence of the traditional elements of a "war."

We are not fighting another country -- historically a necessary prerequisite to war. Thus, there is no territory we, or our enemy, are trying to take or defend. . . .

We are not using drones to kill uniformed, enemy military killing our citizens, or destroying property, in the United States. We are using them to invade countries with which we are not at war, sometimes over the protests of their governments and peoples, to kill their non-uniformed citizens or visitors (and civilians). We kill them, not because they are engaged at that moment in destroying U.S. property, or attempting to kill U.S. military personnel, in one of the 150-plus countries where we feel entitled to have bases. We kill them because we believe they might someday do so, or are engaged in planning or training to do so. . . .

We're not paranoid. We have real enemies. . . . But neither is it a "war" -- by any of the standards historically applied and regulated under an international law of war, notwithstanding the Administration's efforts to make it into one.

And now, before we have even developed a vocabulary, and a legal and ethical set of standards for describing, not to mention judging, what we are doing with our drones abroad, we're confronted with another set of issues regarding our drones at home. . . .

The Fourth Amendment to our Constitution 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 . . ." -- a right primarily enforced by excluding evidence so obtained from criminal trials. The drafters of that protection didn't have the Internet, drones, or other innovative revolutions in technology in mind. . . .

We can't be said to have "a reasonable expectation of privacy" (Katz v. U.S., 1967) of those things we leave in plain view. But how should, how can, the law respond when everything we do is in the plain view of constantly hovering drones?

# # #

Weekly World News, Weakly World Privacy

July 18, 2011, 9:35 a.m.

Murdoch's Violations Small Part of Loss of Privacy
I have often said, "the problem is not that corporations violate the laws, it is that they write the laws."

I have often been wrong -- at least partially so.

Because, of course, the problem is also that corporations corrupt or otherwise violate the laws as well as writing them. BP and Massey Coal did both, and workers died. Murdoch's worldwide media monopoly hacked cell phones, published stories based on the conversations, and hundreds of citizens and celebrities alike suffered in a variety of ways.

There's no way to minimize or justify what the editors and reporters of Murdoch's News of the World did. It's awful. From the perspective of college classrooms it's a subject for studies of journalism, technology, and law. It's a global media story, an example of how technological "advances" gnaw away at our neglige of privacy, and thereby create Rubik's-cube-like challenges of legal analysis for legislators and lawyers.

If you haven't been following the events, here is a sampling from the New York Times of the thousands of stories the worlds' media have provided: Sarah Lyall, "Scandal Shifts Britain’s Media and Political Landscape," New York Times, July 8, 2011, p. A1; John F. Burns and Alan Cowell, "Former Aide to [Prime Minister] Cameron Is Arrested in Tabloid Scandal," New York Times, July 9, 2011, p. A8; Don Van Natta Jr. and Ravi Somaiya, "British Tabloid Sought Phone Data of Investigators," New York Times, July 12, 2011, p. A1; and Sarah Lyall and Graham Bowley, "Connections to Murdoch Start to Chafe British Leader," New York Times, July 13, 2011, p. A1.

But this is more than a story about the fall of one of the world's largest media barons. It should also be a teachable moment for all of us regarding our privacy.

Consider all of today's technological and other assaults on the standards of privacy accepted and expected by our great-grandparents. From that perspective, as awful as the Murdoch invasions appear to have been, they are but a very small part of what we need fear.

Like the insight of Walt Kelly's cartoon figure, Pogo -- "We have found the enemy, and he is us" -- or Winnie the Pooh's discovery that the tracks he was following were his own, most of the assaults on our privacy are self inflicted.

(1) Much of our lost privacy we have voluntarily abandoned. Take Facebook, for example. Our names, addresses, birth dates, family members -- all identified with "tags" in their photos -- and our network of "friends," are available for the databases of Facebook, criminals or law enforcement. We may keep unencrypted passwords on a thumb drive, smart phone, or laptop, available to whoever gets our lost or stolen equipment. I recently saw a desktop in a business with a Post-It note stuck to the screen, revealing to anyone who glanced that way the username and password. Once a voice mail hacker knows that 75% of users choose "1-2-3-4" as their password it makes it a whole lot easier to listen in. Now that the FBI (and anyone else) can search our trash without a warrant, we may still think we're destroying documents with credit card numbers or other valuable data because we took them out to the curb for trash pickup, rather than shredding them.

(2) Professor Jonathan Zittrain speaks of what he calls "privacy 2.0" ("The Future of the Internet -- And How to Stop It").

As technology progresses through the decline in price that I call "the 99.9%-off sale" (not incidentally, with improved capacity and quality, and reduction in size and weight), it spreads, it becomes ubiquitous. The video recording capability that once cost tens of thousands of dollars is now merely hundreds of dollars or less.

Our actions are being recorded by the scanning video cameras in government buildings, banks, convenience stores and other private businesses. They monitor and bill those who run red lights. The Webcams in our laptops may take video of us without our knowledge.

But that's not the major problem.

Still and video camera capability is built into our smart, and even dumb, cell phones.

Couple this with the ease of uploading videos to YouTube, Facebook, or attaching them to emails. Anyone's embarrassing, or illegal, moment can suddenly go viral globally.

That's not the result of government, Big Brother snooping on us, or evil corporations. It's us; millions if not billions of us, recording and distributing information about each other -- usually for reasons somewhere between friendly and helpful, or at least benign.

(3) We gratuitously give our private information to Facebook, expecting little or nothing in return.

But we also trade off our privacy, our secrets, our personal identifying data, for perceived benefits. We give the bank our financial data, including how much cash we took out from which ATM machine, the day and time. We let the credit card company record where we went, what stores or other businesses we entered, what we bought, what we paid for it, where and when. The cell phone company tracks our every move, knows where we are, who we called, how long we talked -- and if they care to know, what we talked about. The airlines know where we flew and when; the rental car companies also.

I'm not saying these and comparable gifts of privacy to corporate America are irrational choices. It would be hard to function in today's world without, say, credit cards and phones. I'm just saying that we can't voluntarily turn over vast amounts of information about ourselves to government and merchants and then complain that they possess this information about us.

(4) This third-party possession of our most intimate information raises other problems.

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. So what about tapping phone lines from a place away from home? In the Supreme Court's 1967 Katz decision, involving law enforcement's recording of a conversation by means of a device attached to a public phone booth, the Court expanded the protection to include those things as to which we have (1) "an expectation of privacy" that most people would consider to be (2) "reasonable" -- the "reasonable expectation of privacy" standard.

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 the Miller case 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. The Court decided those were the bank's records as much, indeed more, than Miller's. Thus, he had no "reasonable expectation of privacy" and law enforcement could get access to those records from the bank, without providing Miller the protections he would have received under the Fourth Amendment had law enforcement come to his home for "papers."

So it turns out that, not only have we turned over a vast amount of information about ourselves to private corporations, we have, thereby, essentially turned it over to the government as well (in many instances) and lost the rights of privacy we have in information never shared.

(5) Once we go to work it only gets worse. Employers can listen in on their employees' phone conversations, read their email, know what Web pages they've visited, track how many keystrokes they contribute per hour or day, and install video monitors throughout the workplace. Even if the employer pledges you have personal privacy with regard to any of the above, courts may reject an employee's reliance on that assurance.

(6) Are there instances in which a hacker acquires information they had no authorization to access, or for which they exceeded their authorization? Of course. The Defense Department gets millions of such hits. There was a recent example of exceeding authority at the University Hospital. One can imagine many more driven by simple curiosity, or a desire to help a friend (such as a bank employee providing a woman contemplating divorce information about suspicious regular checks drawn on the errant husband's separate account).

The Murdoch reporters, and the editors to whom they reported, had no business getting access to the voice mail of 9/11 victims' families, or those of British soldiers killed in action, celebrities, or the murdered young girl. It's not only boorish behavior and a violation of journalistic ethics, it also happens to be a violation of the criminal law.

But if we really care about maintaining some little bit of our remaining privacy regarding our images, speech, writing, movements, actions, circle of friends, financial transactions, medical records -- among other things -- we need to look well beyond the Murdoch Empire, however vast and evil it may be.

And we need to begin with the person we see in our bathroom mirror.

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Cyber, Cyber Everywhere and Not the Time to Think

May 13, 2010, 8:40 a.m.

The IEDs Among Us: Copy Machines
(brought to you by FromDC2Iowa.blogspot.com*)
The latest assault on our privacy turns out to be that seemingly benign office copy machine.

At a warehouse in New Jersey, 6,000 used copy machines sit ready to be sold. CBS News chief investigative correspondent Armen Keteyian reports almost every one of them holds a secret.

Nearly every digital copier built since 2002 contains a hard drive - like the one on your personal computer - storing an image of every document copied, scanned, or emailed by the machine.

In the process, it's turned an office staple into a digital time-bomb packed with highly-personal or sensitive data.

If you're in the identity theft business it seems this would be a pot of gold.

"The type of information we see on these machines with the social security numbers, birth certificates, bank records, income tax forms," John Juntunen [of the Sacramento-based company Digital Copier Security] said, "that information would be very valuable."

Armen Keteyian, "Digital Photocopiers Loaded With Secrets; Your Office Copy Machine Might Digitally Store Thousands of Documents That Get Passed on at Resale," CBS Evening News, April 15, 2010 (the transcript and the video); Cecilia Kang, "Rep. Markey calls for FTC to investigate copy machines' retention of user data," Washington Post, April 29, 2010 ("The copy machine has a better memory than most may think. And that's got Rep. Edward J. Markey concerned. The Democratic congressman from Massachusetts asked the Federal Trade Commission on Thursday to investigate the retention of documents on hard drives of digital copy machines. . . . 'I am very concerned that these copy machines can be a treasure trove for identity thieves, allowing criminals to easily access highly sensitive personal information,' Markey said in a release.").

Desktop and laptop computers are, for the most part, recognizable as such -- notwithstanding Apple's creative efforts. But the other devices in our lives that function as computers, or are at least controlled in some measure by computer chips, are less so. They may look like automobiles, microwaves, refrigerators, cell phones -- or copy machines.

When it comes to our privacy, our ability to prevent identity theft, these "computers" are the improvised explosive devices (IEDs) buried along the digital road.

The Internet is a wondrous thing to which I am connected, or potentially so, during most of my waking hours. But the networking of computers that it represents is creating cyber challenges for most sectors of our society.

For the military it is cyber-warfare -- what others can do to us, and what we can do to them. It is between 250,000 and a million attempted hacks a day into DOD computers. And the threats are not limited to the battlefields of Iraq and Afghanistan. It is the possibility of another nation, or more likely non-nation terrorists, closing down our electric grid, air traffic control, natural gas pipelines, communications satellites, and the financial networks that move trillions of dollars a day around the planet electronically -- and that's just for starters.

For law enforcement it is cyber-crime -- law breaking opportunities limited only by the human imagination.

For each of us individually it is the risk of identity theft. It is the sensation of being stripped naked electronically, as our every credit card purchase, the location and content of our every cell phone call, the content of our emails and text messages, the trail of our Web site hits, are being recorded -- along with the video tapes of our public movements. (Sylvia Hui, "New York Mayor Michael Bloomberg in London to view subway system CCTV network," Associated Press/Minneapolis Star-Tribune, May 11, 2010: "Bloomberg wants to ramp up the security camera network in New York City's subways to mimic that in London's underground train system . . . one of the largest in the world.")

See generally, "Times Topics: Privacy," New York Times.

George Orwell warned of the dangers of government intrusion into our lives. The ease with which search warrants can be obtained (or searches conducted without them), the ability of NSA, CIA and FBI to track our electronic lives, and the willingness of phone companies, credit card companies, Internet service providers,banks and others to give them information about us -- sometimes in violation of law, for which Congress granted the phone companies immunity after the fact, so we couldn't sue them -- is relatively well known.

What's less well known, perhaps, and in many ways more invidious than government snooping, is the extent to which commercial firms are gathering and selling information about our every electronic move -- with neither our permission nor knowledge. Of course, in the workplace nothing is protected: phone calls, email and Web visits can be, and are, monitored.

The revelations about copy machines maintaining a full record of every document we run through the office copy machine is just the latest. And this affects us primarily not from the copies we make and can be traced back to us, but the copies that may be made within other institutions. These documents may contain personal information about us: medical and student records, Social Security numbers, address and phone, criminal records, and so forth, as the CBS investigation, above, lays out.

In fairness to those who are snooping on us, a good deal of what they know is what we have voluntarily and knowingly chosen to reveal. Most of us find the convenience of a driver's license, bank checking account, ATM and credit card, cell phone, airline miles and other reward systems well worth whatever loss of privacy is involved. They are considered by many to be useful, if not essential services in our time.

Passwords to our computers don't have to be hacked by some 14-year-old geek genius if we've left them on a post-it note on our computer screen. Credit card numbers don't need to be hacked out of the credit card company if we leave the carbon copies with the merchant, ultimately to be deposited in a dumpster.

And currently on everyone's radar are the privacy abuses by Facebook of its 400 million users. But this is different from credit cards and cell phones. Those companies may keep more data, for a longer period of time, than is necessary for our business relationship. But if a credit card company is going to bill us accurately there needs to be some record keeping, for our sake as well as theirs.

Facebook, by contrast, is neither a necessary service nor one that requires any particular information about us to function. Our decision to "join" is voluntary. If college students post pictures of themselves at their binge-drinking worst it's not really Facebook's fault when a future potential employer sees them and decides to hire someone else. If a Facebook user includes their birthday as a part of their public profile it's not Facebook's fault if a thief makes use of it when emptying that user's bank account.

Of course, it is Facebook's fault when it makes it nearly impossible for users to limit public access to their private data (it's "opt out" not "opt in," the manual is longer than the Constitution, and the FAQ explanations run 45,000 words), when it changes the rules without notice, or when it keeps, utilizes and sells this private data to others long after the user has come to their senses and "deleted" their information. These concerns, and others, are coming to be larger and clearer to the public. Nick Bilton, "Price of Facebook Privacy? Start Clicking," New York Times, May 13, 2010, p. B8; "Facebook Privacy: A Bewildering Tangle of Options" (interactive), New York Times, May 12, 2010; Erica Naone, "The Changing Nature of Privacy on Facebook; Microsoft's Danah Boyd on social networking," MIT Technology Review, May 3, 2010.

The terms of the bargain people make with social networks — you swap personal information for convenient access to their sites — have been shifting, with the companies that operate the networks collecting ever more information about their users. That information can be sold to marketers. Some younger people are becoming more cautious about what they post. “When you give up that data, you’re giving it up forever,” [one of the Diaspora creators, Max] Salzberg said. “The value they give us is negligible in the scale of what they are doing, and what we are giving up is all of our privacy.”

Jim Dwyer, "Four Nerds and a Cry to Arms Against Facebook," New York Times, May 12, 2010, p. A19.

But copy machines spying on us, and employers disposing of the old machines without removing or cleaning the copy machines' hard drives?! That's a new one. That's the latest. Unfortunately, it won't be the last.
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* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself.
-- Nicholas Johnson
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Hasan and the Obligation to Intervene

November 16, 2009, 6:00 a.m.

Major Hasan: A Case Study in Responsibility
(brought to you by FromDC2Iowa.blogspot.com*)
As everyone in the world with access to the media has been informed, "[Army] Major [Nidal Malik] Hasan, 39, an Army psychiatrist . . ., is accused of opening fire with a pistol on Nov. 5 at a Fort Hood center where . . . he shot to death four commissioned officers, eight enlisted soldiers and one civilian in the crowded center [and] twenty-nine other people were wounded . . .." James C. McKinley Jr., "Major Held in Fort Hood Rampage Is Charged With 13 Counts of Murder," New York Times, November 13, 2009, p. A14. And see, James C. McKinley Jr. and James Dao, "Fort Hood Gunman Gave Signals Before His Rampage," New York Times, November 9, 2009, p. A1.

Among the dozens of potential issues raised by this case is one that I've begun hoping an interdisciplinary group will write a book about (or someone will tell me they already have). Today's blog entry will begin that inquiry, . . .

. . . but first, here are links to earlier entries on some of the other hot topics from the past week or so that are now getting the most direct hits, among which may be the entries you are looking for:

School boundaries, school boards, and the ICCSD.
"School Board Election: Now Work Begins; It's Swisher, Dorau, Cooper; Old Board 'Starting Off Backing Up' With Consultant and Tough Decisions," September 9, 2009, 7:00 a.m. (with its links to 11 prior and related blog entries including, for example, "School Boundaries Consultant Folly; Tough Boundary Questions Are for Board, Not Consultants or Superintendent, Plus: What Consultant Could Do," and "Cluster Schools: Potential for IC District?")

Nicholas Johnson, "School Board Has Work to Do," Iowa City Press-Citizen, November 2, 2009 (and reproduced in blog)

"Boundaries: Only Board Can Do Board's Job; Drawing School Boundaries Made Easy," November 2, 2009

UIHC, Regents and UI.
Strategic Communications VP position: "Strategic Communications a Failed Strategy; Actions Speak Louder," November 13, 2009

Executives trip to Disney World: "Mickey Mouse Patient Satisfaction; UIHC's Troubles: Is Orlando the Answer?" November 8, 2009

"Contributions from patients" proposal: "UIHC: 'Sick Brother, Can You Spare a Dime?'; A Check-In and a Check," October 31, 2009, 7:00 a.m. (with numerous updates through November 4, links to additional, related material -- and now with over 30 of the Press-Citizen readers' comments on B.A. Morelli's stories)

Board of Regents and State universities' budget cutting: "Cutting Slack, Cutting Budgets; Regents, University Presidents, Deserve Some Thanks and Credit," October 30, 2009, 8:30 a.m. (with links to prior, related blog entries)

Spence break-in grand jury proceedings: "UI Spence Break-In: Gazette Scoop Illustrates Issues," October 27, 2009

The issue, most broadly stated, is: If one has a suspicion, or concern, that another may pose a risk of physical harm to others, what are the conditions under which (a) one has an obligation to report that concern to others, (b) one may report it, but need not, or (c) must not report it?

As phrased, it is intended to suggest that Major Hasan's case, while more than a mere "news peg," is but one illustrative case study from among probably hundreds that would be required for the inquiry I have in mind. It is, however, the case that has sparked my curiosity; thankfully a curiosity that is not the product of personal past or present needs to confront the intervention dilemma.

And since the Hasan case is the one that's most forcefully on our minds at this time, and one for which the President has called for a related inquiry, let's explore it in a little more detail in an effort to put some specific meat on this issue's otherwise somewhat general and disconnected, dry philosophical bones.

Here are excerpts from a story describing President Obama's inquiry:

President Barack Obama has ordered a high-level review of how U.S. officials handled warning signs that might have pointed to the eventual killing spree at Fort Hood, Texas . . ..

Obama ordered John Brennan, his adviser on homeland security and counterterrorism, to find out what various federal agencies knew about Hasan, how they treated the information and whether they shared it with other agencies. . . .

Among the possible warning signs that the media have discovered since the shootings:

-Hasan had contact with a radical Muslim cleric who's suspected of a connection to 9-11 and thought to be an influence in other terrorist attacks.

-Hasan may have expressed favorable views of suicide bombings. A Web site in May featured a post under the name "NidalHasan" that likened Muslim suicide bombers to solders who throw themselves on hand grenades to save their comrades. Both, the writer said, sacrifice "for a more noble cause."

-Hasan said in 2007 that Muslim soldiers should be excused from fighting in Afghanistan and Iraq because they'd be fighting fellow Muslims, according to The Washington Post. "It's getting harder and harder for Muslims in the service to morally justify being in a military that seems constantly engaged against fellow Muslims," he said.

-His views alarmed fellow doctors at the Walter Reed Army Medical Center, and they questioned as early as last year whether he was psychotic, according to National Public Radio. They expressed misgivings about his "extremist Islamic views," and he was reprimanded for telling one patient that "Islam can save your soul."

Rep. Michael McCaul of Texas [has asserted that] "there were communications and wire transfers made to Pakistan." . . .

U.S. government agents knew that Hasan had exchanged 10 to 20 e-mails starting last December with Awlaki, a New Mexico-born Muslim cleric who grew up in Yemen and was linked in the 9-11 Commission's final report to at least two of the 2001 hijackers. . . .

Lacking any clear threatening language, officials didn't pursue an investigation.

The FBI . . . had "reviewed certain communications between Major Hasan and . . . [Awlaki] and assessed that the content of those communications was consistent with research being conducted by Major Hasan . . .. [T]he JTTF (Joint Terrorism Task Force) concluded that Major Hasan was not involved in terrorist activities or terrorist planning."

Steven Thomma and Leila Fadel, "Obama orders inquiry into handling of Hasan intelligence," AP/McClatchy Newspapers/Miami Herald, November 12, 2009.

There are a number of aspects of this case that, while interesting, are outside the scope of the issue at hand: (1) The President is, necessarily, concerned about the ability of federal agencies to better share information in the cause of protecting the country and its citizens. As the story notes, "The failure to share intelligence was singled out as a factor that allowed the Sept. 11, 2001, terrorist attacks to occur." (2) There are reports of great heroism by those who were subject to Major Hasan's attack on November 5: taking fire while attempting to save others, their immediate provision of treatment for the wounded, and so forth.

How government agencies communicate within and among each other, or how individuals react in the midst of a subject's actual attack on third parties (as distinguished from the warning signs that such might occur), are beyond the scope of the inquiry -- as are the ultimate judgments that investigators may come to with regard to the assessment of blame, or innocence, among those who perhaps could have done more that might have prevented this tragedy.

Nor, for these purposes, am I focused on the obligation to prevent individuals from engaging in behavior that is only potentially harmful to themselves, or their doing harm to others that is something other than physical (e.g., hurt feelings, fraud or property damage).

What I'm interested in exploring -- or better yet, others exploring -- are the variety of contexts in which an "obligation to intervene" may arise because of the possibility of physical harm to another, the variety of standards that are applied, and the range of issues that the decision may present. Are there universal, or "neutral principles," that apply across this variety of contexts, standards and issues, or are there different answers for different contexts -- or perhaps not even contextual standards, but a chaos of answers as the most appropriate decision in each case is that "it depends," depends that is on the specific facts?

Here are some examples of contexts and issues -- all off the top of my head; none of which have yet been subjected to even superficial research.

Behavioral standards and constraints. When one thinks of obligations "the law" comes first to mind (especially if one is a lawyer!). But when the full range of the standards and constraints that mold human behavior are considered, law and regulations are but a relatively small sub-set. There are religious doctrines and teachings. There are moral and ethical standards apart from religion. There are philosophical inquiries. There is what we used to call "etiquette," and might be thought of as social mores, tradition or custom. And as the anthropologists remind us, there are various combinations and permutations of all of the above that can be found among various indigenous peoples and other cultures (e.g., compare the behavior in a small Iowa or Japanese farming community with that of wealthy executives in Tokyo or lower Manhattan). Each of these sources of behavioral constraints may have something to contribute to an inquiry into the "obligation to intervene."

The balance: privacy vs. protection. As with so much of law and life, when, where and why an "obligation to intervene" may exist will require a balancing of a number of interests. Clearly, society in general and the intervenor in particular want to avoid third-party-inflicted physical harm to others when possible. On the other hand, both also have an interest in maintaining all individuals' presumption of innocence, privacy interests, and reputations -- all of which are harmed by false charges or even suspicions. How are we to balance "Am I my brother's keeper" with "mind your own business"?

As an example of the harm that can be done to someone wrongfully accused (notwithstanding, perhaps, the best of intentions by the accuser), the Register editorialized yesterday about a case in which "the judge reversed and 'found to be incorrect' a social worker's finding that [a man] sexually abused a 15-year-old boy. His name was removed from the abuse registry. But not before he spent 393 days on it. Not before he lost his job in human services. Not before he lost his license to be a foster parent. Not before he cashed out his retirement savings and declared bankruptcy. Though the 31-year-old Iowan had spent his adult life working with kids - in shelters and residential treatment facilities and as a school liaison officer - being on the registry prevented him from getting another job working in these fields." Editorial, "A Year Shattered by Sex Abuse Allegations," Des Moines Register, November 15, 2009; Andie Dominick, "Protecting kids crucial, but accused deserve fair hearing," Des Moines Register, November 15, 2009.

International law. Does the Universal Declaration of Human Rights have anything to contribute to this inquiry? What about "preemptive wars" (such as our second Iraq invasion) or "preemptive strikes"? Are there published, or at least rational, standards for the process by which one nation (nation 1) can legitimately take action against another (nation 2) to prevent nation 2 taking action against either nation 1 or nation 3? (The UN Charter, ch. 7, art. 51, merely provides that, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations . . ..")

Arrest. How are police officers instructed with regard to, in effect, "preventive arrest"? When can they intervene to prevent what they believe will be imminent physical harm, when must they wait for the harm to occur before making an arrest, and what are the standards they use for making those distinctions?

Prosecutors, Grand Juries, and Trials. There are standards governing the judgments made by prosecutors, grand juries, trial judges and juries, such as "beyond a reasonable doubt," or "preponderance of the evidence," standards governing when a "suspect" can be prosecuted, or ultimately found guilty. For the question of whether a prosecutor may be liable in damages for exceeding prosecutorial discretion, see McGhee v. Pottawattamie County, 547 F.3d 922, 927 (8th Cir. 2008), argued before the U.S. Supreme Court as Pottawattamie County, IA v. McGhee on November 4, 2009 ("prosecutor allegedly (1) violated a criminal defendant’s 'substantive due process' rights by procuring false testimony during the criminal investigation, and then (2) introduced that same testimony against the criminal defendant at trial."); William Petroski, "Court reviews Iowa prosecutors' immunity," Des Moines Register, November 5, 2009.

Mandatory reporting. Teachers, at least K-12, are "mandatory reporters" of physically abused children. How do the relevant law and regulations articulate the standards, or process, they are to use in evaluating what they perceive and deciding whether to report it? What are the penalties for a failure to report?

Bartenders' burden. "Dramshop Acts," as they were originally called, impose on bar owners, and bartenders, legal liability for the subsequent harm done by customers who were served additional alcohol when they were already obviously dangerously drunk. Are there standards for making these judgments?

Involuntary commitment. There are circumstances under which an individual can be commited against their will to a mental hospital if there is a risk of their doing harm to themselves or others. What stardards are used by those responsible for making these judgments -- or by reviewing authorities when those judgments are questioned?

Preventive detention. Aside from involuntary commitment, what are the standards by which someone can be judged to be such a risk to society that they can be confined -- either beyond the term for which they were incarcerated for purposes of punishment for a crime, or without ever having engaged, yet, in a violent act against another? The "precrime police" of the feature film, "Minority Report," fictionalized the extreme of this approach.

Professional privilege. Doctors (including psychiatrists), lawyers, religious advisors -- and to a lesser extent journalists -- have a privilege of confidentiality that is recognized by the courts in some instances when such professionals would otherwise be required to testify as to what they know as a result of counselling sessions. But their legal right to refuse to testify about, and their ethical obligation to refrain from otherwise disclosing, such information is modified in some situations in which they are aware of imminent harm to another. For example, a client may ask a lawyer what defenses will be available when the client murders his wife, or a patient may explain to his psychiatrist his preparations to kill someone.

Religion and philosophy. Is there anything in Catholic doctrine, Jewish -- or especially Muslim -- teaching of relevance? For example, might "the Golden Rule" suggest that you should intervene if, were you the one at risk of physical harm from a third party, you would want someone to intervene on your behalf? What can be found in the thinking and writing of the world's great philosophers; for example, Kant's "categorical imperative," with his First, Second and Third Maxims, and how he distinguishes his approach from religion's "golden rule." Immanuel Kant, Groundwork of the Metaphysics of Morals (1785)?

Community standards. The nine categories just listed, and others that could be imagined or identified, mostly involve the legal or ethical standards applied to various professions as a matter of law or regulation. What is perhaps even more complex are the standards implicitly agreed to, though not articulated or embodied in formal documents, regarding (a) required, (b) acceptable, and (c) unacceptable interventions -- especially when it involves intra-family behavior. When are small boys' play with firecrackers and small explosives, or cruelty to animals, something of such concern that the community tends to agree that the neighbor who notices really should say something to parents, other neighbors, or authorities? What of the next door neighbor who goes out into the backyard, in a drunken condition, and fires off a rifle or shotgun -- though he's never been known to kill anyone? When is an overheard "I'd like to kill that SOB" transformed from hyperbolic displeasure into a genuine threat to "that SOB" that should be reported to someone? What if a neighbor hears cries emanating from the house next door believed to be the result of domestic violence? When driving, what is the responsibility to report a car weaving back and forth across a highway?

These are just some of the preliminary issues and questions that came to my mind following the tragedy at Fort Hood.

I'd welcome comments on this blog entry from anyone who cares enough about the subject to have read this far and would care to make them. I have a sufficiently full plate at this time in this semester that I'm unlikely to be undertaking the necessary research -- let alone writing a book. But I'd enjoy looking at whatever anyone else has written or sources to which they would like to refer me.
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* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source, even if I have to embed it myself. -- Nicholas Johnson
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