Orin Kerr’s Dangerous Thinking

Apple has announced that with the new iOS 8 release they are no longer able to comply with law enforcement warrants to decrypt the contents of iPhones and iPads.

On devices running iOS 8, your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes, and reminders is placed under the protection of your passcode. Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.

As soon as I heard about this, I figured it would provoke outrage from the usual quarters, invoking the standard list of villains. Terrorists! Drug dealers! Child pornographers! Oh My! Here’s the first example I found:

Ronald T. Hosko, the former head of the FBI’s criminal investigative division, called the move by Apple “problematic,” saying it will contribute to the steady decrease of law enforcement’s ability to collect key evidence — to solve crimes and prevent them. The agency long has publicly worried about the “going dark” problem, in which the rising use of encryption across a range of services has undermined government’s ability to conduct surveillance, even when it is legally authorized.

“Our ability to act on data that does exist . . . is critical to our success,” Hosko said. He suggested that it would take a major event, such as a terrorist attack, to cause the pendulum to swing back toward giving authorities access to a broad range of digital information.

So Hosko went with “terrorists.” I will leave finding examples mentioning drug dealers and child pornographers as an exercise for the reader.

I’m not too concerned about about the general outrage (yet), but I do want to address the concerns raised by Orin Kerr, because they are more thoughtful than the usual law-and-order hysterics, and because they are wrong and dangerous to civil liberties.

If I understand how it works, the only time the new design matters is when the government has a search warrant, signed by a judge, based on a finding of probable cause. Under the old operating system, Apple could execute a lawful warrant and give law enforcement the data on the phone. Under the new operating system, that warrant is a nullity. It’s just a nice piece of paper with a judge’s signature. Because Apple demands a warrant to decrypt a phone when it is capable of doing so, the only time Apple’s inability to do that makes a difference is when the government has a valid warrant. The policy switch doesn’t stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants.

That’s just not true. I think Orin is probably an honorable guy, but he’s repeating a lie that a lot of people would like you to believe. The truth is that anything that Apple does to protect our data from the government also protects our data from malicious people inside Apple itself. After all, in order for Apple to be able to decrypt our iPhone data for the government, Apple has to be able to decrypt our iPhone data.

In order to do that, Apple has to have people somewhere within its organization who have access to software and cryptography keys that can crack iPhone encryption, which makes it possible that someday an employee could walk out of Apple headquarters carrying a MacBook full of software that can break the security on half a billion iPhones.

In addition, Apple having the ability to crack its phones’ security creates a brittle break of iPhone security. It’s like putting an elaborate $1000 electronic lock on every door in an office building and keeping the keycard programmer in the building superintendent’s office. Anyone with the burglary skills to break in to the super’s office can ransack the rest of the building with ease. And anyone who gets a hold of Apple’s iPhone cracker can read every iPhone in the world.

That sort of high-value target is very tempting for hackers. And when I say hackers, remember that it’s not just rebellious college kids working out of their dorm. Commercial hacking is a serious criminal enterprise, run by the same kinds of people that run drug smuggling rings and extortion rackets. Making matters worse are the various national intelligence agencies in places like Russia, China, and Iran that might find it worthwhile to spend tens of millions of dollars on a technical and human intelligence program to compromise iPhone security, and the security of everything we can reach from our iPhones. And since plenty of foreigners use iPhones, I wouldn’t be surprised if the NSA has already stolen the keys from Apple.

Apple’s design change [is] one it is legally authorized to make, to be clear. Apple can’t intentionally obstruct justice in a specific case, but it is generally up to Apple to design its operating system as it pleases. So it’s lawful on Apple’s part. But here’s the question to consider: How is the public interest served by a policy that only thwarts lawful search warrants?

I think I’ve explained quite well how that public interest is served, because Apple’s changes don’t just thwart lawful search warrants, they also thwart malicious hacking and bad actors inside Apple. Once you remove this false assumption, Orin Kerr’s post falls apart.

Orin’s argument worries me for another reason, however, because he frames the issue in a way that is dangerous for the future of privacy. For example, at one point, this is how he responds to the argument that there are technical alternatives available to law enforcement even with Apple’s changes:

These possibilities may somewhat limit the impact of Apple’s new policy. But I don’t see how they answer the key question of what’s the public interest in thwarting valid warrants. After all, these options also exist under the old operating system when Apple can comply with a warrant to unlock the phone. And while the alternatives may work in some cases, they won’t work in other cases. And that brings us back to how it’s in the public interest to thwart search warrants in those cases when the alternatives won’t work. I’d be very interested in the answer to that question from defenders of Apple’s policy. And I’d especially like to hear an answer from Apple’s General Counsel, Bruce Sewell.

You know what? I don’t give a damn what Apple apple thinks. Or their general counsel. The data stored on my phone isn’t encrypted because Apple wants it encrypted. It’s encrypted because I want it encrypted. I chose this phone, and I chose to use an operating system that encrypts my data. The reason Apple can’t decrypt my data is because I installed an operating system that doesn’t allow them to.

I’m writing this post on a couple of my computers that run versions of Microsoft Windows. Unsurprisingly, Apple can’t decrypt the data on these computers either. That this operating system software is from Microsoft rather than Apple is beside the point. The fact is that Apple can’t decrypt the data on these computers is because I’ve chosen to use software that doesn’t allow them to. The same would be true if I was posting from my iPhone. That Apple wrote the software doesn’t change my decision to encrypt.

This touches on another thing that Orin seems to miss, which is that Apple’s new policy is not particularly unusual. In situations that demand high-security, it’s kind of the industry standard.

I’ve been using the encryption features in Microsoft Windows for years, and Microsoft makes it very clear that if I lose the pass code for my data, not even Microsoft can recover it. I created the encryption key, which is only stored on my computer, and I created the password that protects the key, which is only stored in my brain. Anyone that needs data on my computer has to go through me. (Actually, the practical implementation of this system has a few cracks, so it’s not quite that secure, but I don’t think that affects my argument. Neither does the possibility that the NSA has secretly compromised the algorithm.)

Microsoft is not the only player in Windows encryption. Symantec offers various encryption products, and there are off-brand tools like DiskCryptor and TrueCrypt (if it ever really comes back to life). You could also switch to Linux, which has several distributions that include whole-disk encryption. You can also find software to encrypt individual documents and databases.

If you use another company to store your data in the cloud, you can use encryption to ensure that they can’t read what they’re storing. Your computer would just encrypt files before uploading then, and then decrypt them when retrieving them.  For example,  EMC’s Mozy backup gives you the option of letting the service do the decryption or doing it yourself with a private key, as do Jungle Disk and Code42 Software’s Crashplan encrypted backup. Dropbox doesn’t offer client-side encryption, so they can read the data you send them, but there are third-party tools such as SafeMonk that run on your computer and encrypt the data before Dropbox ever sees it.

I guess the point I’m trying to make is that it’s not Apple’s data, and it’s not Apple that makes the decision to encrypt the data. It’s our data, and we decide whether to encrypt it or not. Apple is just one of several companies that supply the tools we use to do that.

Orin Kerr’s viewpoint seems to elevate Apple’s participation in the process, to treat Apple as somehow responsible for preserving law enforcement access to data that is not even in its possession. That’s not a model I’m comfortable with as the basis for legislation. I don’t want to normalize the idea that the providers of our information tools are obligated to subvert those tools because it makes the government’s job easier.

Orin suggests that might be a possibility:

The most obvious option would be follow the example of CALEA and E911 regulations by requiring cellular phone manufacturers to have a technical means to bypass passcodes on cellular phones. In effect, Congress could reverse Apple’s policy change by mandating that phones be designed to have this functionality. That would restore the traditional warrant requirement.

CALEA is bad enough in requiring carriers to have the technological ability in place to allow law enforcement agencies to tap telephone and internet traffic traversing the carriers’ networks. What Orin is suggesting (although not advocating) goes far beyond that, by requiring computer systems manufacturers to intentionally subvert their customers’ information security, even if unlike the CALEA scenario, the customer’s information never leaves the customer’s hands. It seems like a slippery slope that could eventually lead to a requirement for every electronic device in our lives to be able to spy on us at the government’s request.

As for restoring the “traditional warrant requirement,” my understanding is that a warrant allows the government to intrude on someone’s privacy to gather evidence. But can a traditional warrant be used to compel a third party to intrude on someone’s privacy? If the government gets a warrant to plant a bug to hear what my wife and I talk about at home, they might ask a locksmith to help them break into my house, but could they use that warrant to force the locksmith to help them? If they want to test my blood for drugs, can they use a warrant to force the nearest doctor to draw my blood and the nearest lab to test it? If they want to surveil a suspect, can a judge order me to grab my camera and take pictures of him?

(For that matter, I don’t quite understand how the government can force Apple to decrypt a phone. I’m guessing that it’s because Apple has some special cryptographic key that makes it easier, and it’s less destructive to privacy for Apple to decrypt a phone than for Apple to turn that key over to the government, but I could be totally wrong.)

Frankly, I’m not convinced that the “traditional warrant requirement” is applicable to encrypted data. Search warrants have always been about the government’s authority to search, but given enough manpower, equipment, and time, the government’s physical ability to conduct the search has never been an issue. The agents of law enforcement have always been able to knock down every door, rip open every wall, and break every box.

Until now.

Modern strong encryption is effectively unbreakable with current technology. Securely encrypted data can only be read by someone who has the decryption key. And if every copy of the decryption key is destroyed, nobody will ever be able to read that data again. (Not using current technology. Not before the stars burn out.) It’s like some sort of science fiction scenario where the data is sealed off in another dimension.

So what should happen to the government’s authority to break every box when someone invents an unbreakable box? It’s not clear to me that the solution is, or should be, requiring the makers of unbreakable boxes to build in secret levers to open them.

(Hat tip: Scott Greenfield)

Scattershot: Dating, Cops Behaving Badly, NSA, and Some Lucky People

Random shots around the web:

 

(Hat tip: Prison Culture)

Step Back From the Line of Fire, Batman

Like, I think, most people, I first heard Junip’s mesmerizing song “Line of Fire” in the promo for the final episode of Breaking Bad:

Sometime afterward, I decided to check YouTube to see if there was an official video for the song. I found it here, but along the way I also found something far more entertaining in this fan mash-up from someone who realized that the song is a good fit for Batman’s story:

If Only the Paperwork

Over at Addicting Info, Jameson Parker complains that, as he puts it in the headline, “NRA Argues People Should Be Allowed To Lie On Gun Registration Forms, Defeating The Whole Purpose.”

This arose out of a criminal case decided by the Supreme Court a few months ago, where Bruce Abramski bought a gun on behalf of his uncle, but filled in the paperwork with his own identifying information instead of his uncle’s. This is, of course, against the rules. Abramaski, with a little help from the NRA, managed to take this all the way to the Supreme Court:

Arbramski’s argument was basically that since his uncle would have passed the background check, and is legally allowed to own a gun, the question of whether the firearm was for him or for his uncle is irrelevant. However, if he had indicated that he was purchasing the gun for someone else, the sale would not have been completed, though, until that person completed the background check paperwork.

That was not a winning argument, which pleases Jameson Parker, because Jameson Parker hates gun owners.

Bruce Abramski bought a gun, which he was legally eligible to own. He then sold it to his uncle, who was also legally allowed to own a gun. What makes this a crime is that the paperwork was filled out wrong: It had Abramski’s name on it instead of his uncle’s. Had the uncle come in and filled out the paperwork in his own name and purchased the gun directly, it would have been entirely legal, even though the end result — the uncle owning a gun, which he is legally allowed to do — would have been exactly the same.

Actually, it’s worse than that. One of the keys facts in the case against Abramski is that when he bought the gun he checked a box indicating that he was the actual buyer. Now if he had gone into that gun shop intending to buy a gun for himself, then he would have truly been the actual buyer, and everything would have been completely legal. And then if he happened to run into his uncle, who admired the gun, then Abramski could have sold his uncle the gun as a private sale, which also would have been legal.

The problem for Abramski is that at the time he was filling out the paperwork at the dealer and checking the box that said he was the buyer, he was actually planning to sell the gun to his uncle, and having that thought in his head is the thing that turns out to be a federal crime.

On the other hand, if the thought he had in his head was that he would sell the gun to someone, but he didn’t have a particular someone in mind — maybe he just figured he could sell it to someone in his gun-loving family  — that would have been legal too. It would also have been legal if he was thinking of transferring the gun to his uncle as a gift instead of a sale.

It’s easy to understand why Abramski fought his criminal charges – he had gotten in trouble and wanted to get out of trouble. It’s harder to justify the NRA’s role in this. …the gun group is turning towards unthinking fanaticism at an alarming rate. No longer does it represent sensible gun legislation which supports gun rights, instead it has a knee-jerk reaction to oppose any limits to guns at all.

Making it illegal to think about selling a gun when you’re buying it is not sensible gun legislation. This is, in fact, an excellent example of why gun owners and the NRA oppose legislation that often appears sensible on the surface (especially as reported in the not-terribly-gun-friendly media). The craziness doesn’t become apparent until you look at the details and think about how they could be abused by people acting in bad faith. And when it comes to gun ownership, a lot of people in authority have proven themselves willing to act in bad faith.

There are many rules – big and small – that people find annoyingly hard to follow, but inconvenience isn’t an excuse to disobey them. In this case, the rule isn’t even a minor one, it’s a massive public safety issue.

No, it’s not. It’s purely a paperwork thing. I assume that the goal of these paperwork rules is to prevent someone who’s not allowed to own a gun from getting someone else to buy one for them. That sounds like it’s probably a pretty good thing to outlaw. But Abramski didn’t do that. He didn’t sell the gun to someone who’s not allowed to have one. He just broke the rules for filling out the paperwork.

Knowing who is buying guns is really important. The background check isn’t an arbitrary invasion of privacy as some conservatives claim, it is one of the biggest tools we have to preventing guns from getting into the wrong hands. It also allows police officers the ability to trace guns after they’ve been used in crimes.

According to the Daily Kos, which is not exactly a right wing mouthpiece, when Abramski transferred the gun to his uncle, they went to a gun dealer and filled out paperwork for the transfer, so they didn’t even break the paper trail for the gun.

I’m not arguing that Abramski didn’t break the law. (The legal issues are far too convoluted for me to untangle.) And I’m not arguing that he did nothing wrong in filling out the paperwork in his own name. (Although in this case it’s hard to see the harm.) What I am arguing is that he did nothing terribly wrong. I certainly don’t think he did anything so wrong that it deserves the potential pair of 5-year sentences that Abramski could have received. Nobody else appears to have thought so either, since Abramski’s actual sentence was 5 years of probation.

Parker characterizes this as the NRA saying it was OK to lie when buying a gun, which is probably technically accurate, but it misses the point that the lie seems to have been of little practical significance. As far as I can tell (and I am not a lawyer, so don’t use this as a guide), Abramski wouldn’t have been convicted if he had

  • made his uncle buy the gun directly,
  • bought the gun for the purpose of giving it to his uncle as a gift,
  • bought the gun for himself but then changed his mind and sold it to his uncle later, or
  • bought the gun intending to resell it to someone else for a profit.

Note that all four scenarios have one thing in common with each other and with what actually happened: The uncle ended up with the gun. In other words, the only difference between legal and illegal is the paperwork, and how important is the paperwork, really? This is basically just a gun-specific variant on the false statements law, which makes it a serious crime to tell a lie, even if the lie itself has no serious consequences.

It serves little public purpose to punish people severely for trivial and harmless lies. It also serves little public purpose to punish people severely for filling out paperwork incorrectly when there’s no real-world harm. It becomes just another way for law enforcement and prosecutors to get an easy notch on their belts, or to harass people they don’t like.

Gun laws are not the only legal area that’s full of landmines where filling out some paperwork incorrectly or breaking some obscure minor rule can land you in a world of hurt, which is why it would be a good thing if Jameson Parker and other anti-gun pundits didn’t cheer on this kind of nonsense because it’s happening to people they don’t like. Because what goes around, comes around.

Bargaining Power 101

Scott Greenfield posted a story a while back about a conversation he had with a biglaw lawyer who was trying to refer a client on a criminal matter. The biglaw guy apparently wanted Scott to commit to negotiating a deal for the client without going to trial. He didn’t even think it was necessary for Scott to do legal research or investigate the case. His explanation for why he thought this was a good idea is disheartening:

My pal then launched into an explanation, that his partner, the “white collar specialist” formerly known as the prosecutor, had already been contacted and explained to the high profile client that nobody wins, that only a fool tries, and that the wise defendant comes in with hat in hand, throws himself upon the mercy of the similarly wise prosecutor, who then exercises mercy and offers a lenient deal that allows the defendant to move on with his life.  That, he explained to the high profile client, is how good lawyers do it.

Oh dear God. I watch a lot of cop shows, and whenever the cops finally get the bad guy in the interrogation room, they always say something like “If you don’t talk to us, we won’t be able to help you out.” Cops make fun of suspects who fall for that, but the “white collar specialist” seems to actually think that the prosecutor will help out his client out of some sense of civility and niceness. I suppose that’s possible, in theory, but I suspect the prosecutor is more interested in getting the best possible deal from the government’s point of view, because that’s kind of his job.

The strangest thing, however, is that the biglaw lawyer seems unfamiliar with the fundamental rule of bargaining: In any negotiation, the person who has the most bargaining power is the person who is most able to walk away. The less you have to lose if the deal falls through, the less the other side can pressure you to make a deal, which means you have more control over the terms of the deal.

Therefore, the best way to get a good deal at the plea bargain is to be as prepared as possible to win at trial. If the trial will be difficult, you can expect a harsh plea offer, but if you have nothing to fear from a trial, you have nothing to fear from a plea. So even if Scott’s would-be client just wants a quick deal, he’ll get a better deal if Scott can convince the prosecutor that the defense has a good chance of beating at least some of the charges at trial. I know Scott is a Superlawyer, but I think even he’d need to poke at the case a bit first.

Granted, plea bargaining in the real world is more complicated than this simple rule, and there are probably cases where the smart move is to make a quick deal. But I find it hard to believe there’s any case in which a quick deal is so important that the defense lawyer should commit to it during the referral.

Sloppy Renewal Plans for Obamacare?

I used to work on healthcare insurance enrollment systems. This is a bad sign for the next Obamacare open enrollment period:

People will be renewing at the same time that others are enrolling for the first time, starting a week and a half before Thanksgiving, on Nov. 15. To ensure that they have a new plan by the beginning of the year, those who renew will have to sign up by Dec. 15. Exactly how the renewal process will work has not yet been determined.

“We’re still waiting on the details of the process,” said Paula Steiner, chief strategy officer for Health Care Service Corporation, which offers Blue Cross plans in five states. “We haven’t gone through any testing yet of any changes to the system for 2015.”

Not having plan details is normal — the insurance carriers might not provide that data until the last minute — but not having specifications for the process this close to opening for enrollment is going to be a real problem.

The Extractive Economy of St. Louis County

Radley Balko finally published the story he was working on in St. Louis County. It’s an amazing piece of work, detailing numerous examples of the abusive relationship between the suburban communities and their residents.

When the officer showed up, Bolden filled with dread.

“He was really nice and polite at first,” Bolden says. “But once he ran my name, he got real mean with me. He told me I was going to jail. I had my 3-year-old and my one-and-a-half-year-old with me. I asked him about my kids. He said I had better find someone to come and get them, because he was taking me in.” The Florissant officer arrested and cuffed Bolden in front of her children. Her kids remained with another officer until Bolden’s mother and sister could come pick them up.

The officer found that Bolden had four arrest warrants in three separate jurisdictions: the towns of Florissant and Hazelwood in St. Louis County and the town of Foristell in St. Charles County. All of the warrants were for failure to appear in court for traffic violations. Bolden hadn’t appeared in court because she didn’t have the money. A couple of those fines were for speeding, one was for failure to wear her seatbelt and most of the rest were for what defense attorneys in the St. Louis area have come to call “poverty violations” — driving with a suspended license, expired plates, expired registration and a failure to provide proof of insurance.

It may sound like this woman is just a scofflaw — four warrants, for Pete’s sake — but as Radley reveals, the small towns that make up suburban St. Louis County are operated in a way that deliberately creates that kind of situation. Police are constantly on the lookout for new reasons to issue citations, and the system is rigged to encourage mistakes, leading to more citations and more warrants. Some towns have more outstanding warrants than they have citizens. All in the interest of earning money from fines.

Some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts. A majority of these fines are for traffic offenses, but they can also include fines for fare-hopping on MetroLink (St. Louis’s light rail system), loud music and other noise ordinance violations, zoning violations for uncut grass or unkempt property, violations of occupancy permit restrictions, trespassing, wearing “saggy pants,” business license violations and vague infractions such as “disturbing the peace” or “affray” that give police officers a great deal of discretion to look for other violations.

Radley tells a number of stories of how this system treats the residents. None of the stories are too horrible — people spend a few weeks in jail at the worst — but when multiplied by tens of thousands of warrants resulting from probably a couple of hundred thousand traffic tickets and minor violations, it’s an ugly story. It’s not quite the encomienda used to essentially enslave the indigenous people of South America, but Radley still paints a picture of an extractive economy in which productive people, mostly black, are preyed upon by an elite ruling caste consisting of city managers, police, lawyers, and judges.

When the protests first started in Ferguson after the shooting death of Michael Brown, a lot of people (including me) wondered why this particular death was the one that triggered a response. Why did the residents of Ferguson choose this moment to protest the police? Why were they angry enough to take to the streets this time? Why all the speeches and national attention?

I still don’t have an answer to those questions, but in light of Radley Balko’s story about what’s going on in St. Louis county, I think a better question is why would the people of Ferguson ever stop protesting? Given what’s been going on, they have every right to be very angry.

Look, I don’t want to be accused of moral relativism here. Of course the looting and arson were crimes. But those crimes were nothing compared to scale of outright thievery masquerading as government that the people of St. Louis County have been putting up with for years. There may have been a few dozen criminals among the protesters, but there are hundreds of criminals wearing badges and sitting in government offices.

A Note to All My Nude Readers

So, if I’m following the story right, it appears that someone managed to hack into a bunch of cell phones or iCloud accounts or something belonging to celebrities and find a bunch of nude photos, which they then apparently dumped on the internet.

I haven’t looked at any of these photos because (1) I already know how to find all the nude photos on the Internet that I’ll ever want to see, (2) even if I had the hots specifically for one of those actresses, the nude photos were supposed to be private, so I’d feel weird looking at them, and (3) even though I’m blogging about the photos now, I have no news-related reason to take a look at them.

The responses to the nude photo dump have been pretty typical. In particular, some people have pointed out that the surest way to avoid having nude pictures of yourself on the internet is to not take nude pictures of yourself. That drew the usual accusations of blaming the victim instead of and blaming the hacker who stole the pictures. This is pretty much the same set of responses we’ve seen with revenge porn. It’s a weird dynamic that I have trouble following, and I’m not quite sure what to say about it.

What I will say, however, to all my friends, family, acquaintances, blog readers, and Twitter followers, is that if any of you have some nude photos of yourself, and if those photos somehow get posted on the Internet, I won’t respect you any less.

For one thing, my libertarian leanings do not just apply to public policy; I’m also somewhat libertarian in my approach to culture and society. I’m really not going to get all judgmental about whatever you and another consenting adult (or two or three) choose to do in private or for willing viewers.

Also, and this may actually be the more important factor, I’ve been on the Internet a long, long time, and by now I’ve seen rather a lot of pictures of naked people — models, actors and actresses, porn stars — doing all kinds of different things. I mean, I was downloading GIFs of naked ladies in the early 1990s, before the World Wide Web was invented, and way before most of you ever heard of the Internet.

I say this not to highlight the shallowness of my life, but to explain why naked people on the Internet…just don’t seem like a big deal. Also, I’ve recently become interested in the sex worker rights movement, and I follow a bunch of sex work activists — strippers, prostitutes, dominatrixes, porn stars — many of whom post nude or semi-nude pictures all the time.

The point is, if I started seeing pictures of most of you naked…I probably wouldn’t even notice.

Undercover Colors Under Fire

Have you heard about the idea for nail polish called Undercover Colors that can be used to detect so-called “date rape drugs” in drinks? It seems to be just a concept for now, but the idea is that a woman having drinks with a date could discretely dip a fingernail into her drink, and the polish would change color if the drink had been spiked with any of several drugs.

My wife noticed this in the news a day or two ago, and my initial thought was that a woman who suspected her date was trying to dose her could use drug-detecting nail polish to check her drink. On further consideration, however, I’m not sure that makes any sense. I mean, if she’s so suspicious of her date that she wants to test her drink, is there really any point to doing the test? Shouldn’t she just get the heck out of there? What’s the thinking for sticking out the date? “He strikes me as the kind of man that would knock me out and rape me, but if the drug test clears him, I’ll stick around and maybe we’ll make out”?

I suppose it makes some sense at a social event or a busy club, where a total stranger could dose your drink without you ever knowing it, although even then it’s only going to stop the small percentage of rapes that involve drugs as a means of controlling the victim. Also, unless the indicator chemical goes on as a clear coat over other colors, it probably won’t give women the color choices they want.

Anyway, I wouldn’t have given it any more thought, except that I stumbled across a link on Twitter to an article about Undercover Colors by Melissa McEwan at the feminist site Shakesville. Some of her concerns are similar to mine, but a few of her complaints are frankly baffling.

Yeah. I have a couple of problems with that. Tara Culp-Ressler does a good job of compiling some of the obvious objections being made by anti-rape activists.

Like: Once again, potential victims are being tasked with rape prevention.

As opposed to who? Most rapes occur in private settings with only the victim and the rapist present, and the rapist is not going to be interested in rape prevention.

Like: Once again, we’re preemptively blaming victims. (How long before a woman who is sexually assaulted after being drugged is asked why she wasn’t wearing nail polish that could have prevented it?)

No, we’re not blaming the victims. It’s possible that at some point in the future someone will blame a victim, and that someone should be called out for being an asshole, but we’re not doing that now. Are you angry at companies that make car alarms because if you don’t have one and your car is stolen, some people will say you should have had an alarm? When someone offers you a choice, why would you get mad at them because someone else, who you consider to be a jerk, might criticize you for your choice?

Like: Once again, we’re focusing on women detecting roofies, rather than the men who put roofies in drinks in the first place.

Well, these people have a plan for detecting roofies, so that’s what they’re focusing on. If you think they should focus on getting men to stop putting roofies in drinks, what’s the plan for doing that? How has it been working so far? I’m willing to believe that initiatives to discourage sexual assault have some effect, but none of them are a panacea that obsoletes all other approaches.

Like: Being able to detect roofies in your drink only protects you; the person who put them there can move on to someone who isn’t wearing nail polish.

I’m not sure I’m understanding that correctly, but it sounds like McEwan is saying that because drug-detecting nail polish would not prevent all rapes, it’s a bad idea to use it to prevent any rapes. This sounds like some kind of radical egalitarian nonsense. Should we not have installed airbags in cars until we could afford to install them in all cars? Should we not produce new drugs to cure diseases unless we can make them cheaply enough for everyone?

There are so many reasons that this is problematic, and they all boil down to this: Individual solutions to systemic problems don’t work. It’s true whether we’re talking about unemployment, childcare options, or rape prevention.

Individual solutions work just fine for individuals who are able to take advantage of them. Not everybody can benefit from them, but not everybody can benefit from systemic approaches either. No rape prevention program aimed at changing men’s attitudes toward sexual violence is going to be 100% effective. Some men are just psychopaths.

And let us all take a moment to appreciate that we’re being told to buy something to prevent rape. Of course. Because the market solves everything. The market has never met a problem that screaming “bootstraps!” and admonishing crass consumerism can’t fix.

Oh dear God. You know, I understand the people who rant at capitalism, because capitalists are so often terrible people (Donald Trump, please call your office), but ranting at the free market is just bizarre. I mean, here are some people using their own time and money to try to solve at least part of a serious problem, and you don’t have to have anything to do with it if you don’t to, and somehow that’s a problem.

Besides, despite what I said earlier, there are probably going to be some women who find it useful to check if a drink is drugged. I would think, for example, that a woman who has been the victim of a “date rape drug” before might appreciate the peace of mind of being able to make sure that it doesn’t happen again. It could take some of the fear out of social situations.

Another group that would probably benefit is professional escorts, who routinely take the risk of spending time alone with strange men, and often turn down drinks out of fear of being roofied. With a discrete way to test the drink, they could be more accepting of hospitality and create a friendlier mood.

And while I was writing this, Elizabeth Nolan Brown wrote about the same subject at Reason:

At the crux of most of these complaints is the axiom that we should teach men not to rape instead of teaching women not to be raped. And that’s an important message! Too much cultural focus for too long has been on how a women’s own conduct contributed or may contribute to her assault, in a way that winds up absolving assailants of culpability.

But teaching men not to rape and helping women avoid rape aren’t mutually exclusive options. It’s been said so many times already so as to be a cliche, but no one accuses security cameras of encouraging “theft culture”. And neither do most people blame theft victims for getting robbed just because they didn’t have security cameras.

And if they do blame theft victims for getting robbed because they don’t have security cameras, they’re idiots, and it would be ridiculous to argue against the sale of security cameras because idiots would blame victims for not having them. You shouldn’t give idiots that much power over the choices available to sane people.

WordPress Jetpack Comments — WTF?

WordPress’s Jetpack plugin is a nice collection of features for bloggers. I host my blog on a server I pay for instead of on the big WordPress.com cluster because I appreciate the extra flexibility, but by using Jetpack, I can also get some of the more powerful cluster-based features, like improved search and uptime monitoring. I have also apparently been making use of a feature called Jetpack Comments, which provides a more elegant comment interface and allows users to authenticate through WordPress, Facebook, and Twitter.

Not that I get a lot of comments. Windypundit doesn’t have the readership it used to have, and I never really had an active commenter community. Lately, in fact, it seems I hardly get any comments at all, which has been kind of disappointing. I assumed people just weren’t finding my posts interesting enough to engage with.

Over the last couple of weeks, however, I’ve been writing about the events in Ferguson, Missouri, and traffic to my site has roughly doubled because of it. And still there were no comments, even though this was a highly controversial subject. That was suspicious. Could there be something wrong with comments on my blog? Would that explain why I haven’t received any comments in a while?

Yes, yes it would.

It turns out Jetpack comments work by replacing the entire comment entry section with something called an iframe, which is an HTML element for embedding a web page inside another web page, and so the comment form displayed at the bottom of my posts wasn’t generated by code running on my server, it was fetched from WordPress.com. And when the user types in a comment and submits it, the form is sent back to WordPress.com. I assume it’s then authenticated appropriately and submitted back to my server and displayed.

At least that was the theory. But when I launched an incognito browser window and used it to submit a test comment, for some reason the iframe filled with a cropped-down duplicate copy of the Windypundit web page, complete with animated banner, but all trapped in a box where the comments used to be. I don’t know where the comment went, but it never made it to my blog’s database.

So…maybe the lack of comments wasn’t due to my being boring after all. I wonder how long it’s been that way…

I assumed that problem was either that my theme design was missing some crucial element that makes Jetpack comments work, or that some other plugin was interfering with Jetpack, so I switched to the WordPress-provided Twenty Fourteen theme and I disabled every plugin except Jetpack. Essentially, I was running WordPress fresh out of the box. And still the problem didn’t go away. I don’t know, maybe it’s some weird Cloudflare thing.

I finally gave up. I put everything back the way it was and then disabled Jetpack comments, which seems to have fixed the problem.

I still wanted the social media connection, so I installed the Social Login plugin, which provides alternate authentication through lots of different social networks using the rather amazing protocol translation services provided by oneall. I almost immediately started getting spam comments, so I also dropped in the Growmap Anti Spambot Plugin, which supposedly checks for humanity by requiring you to check a box. I’m not sure why that can’t be automated, but I’ll give it a try.

I need to test this, so if you’ve read this far, please help me out by leaving a comment. Just say hi. Let me know that my blog software is no longer turning readers away.

Ferguson Fatigue

It seems fatigue has set in with the protests in Ferguson, Missouri, following the fatal shooting of Michael Brown by Officer Darren Wilson. I’ve been following the protests and the police response every night on Twitter since the shooting, and it’s been riveting. I keep telling myself to ignore it for a while, and for most of the last two weeks, I keep getting drawn in anyway.

There seemed to be a sort of hardening effect going on among the protesters. I first really noticed it the second night after the highway patrol took over from St. Louis County. Everything was relatively peaceful for a while, but then it started to rain, which I think chased off many of the ordinary residents of Ferguson, leaving behind a crowd with a larger-than-normal fraction of drunks, criminals, and agitators. Without the moderating influence of normal people, the looters went a little wild, which prompted the Governor to declare a state of emergency. Captain Johnson of the highway patrol had said that police wouldn’t use tear gas on peaceful protesters, but police ended up gassing the crowd anyway, which they claimed was necessary because of people with guns and Molotov cocktails. That drove off even more people.

Meanwhile, experienced protesters from all over the country had started to travel to Ferguson, and I started to notice more signs of preparedness among the crowds — eye protection, ear plugs, stashes of supplies, legal aid phone numbers written on their arms — and I began anticipate that things would get more confrontational, but also that the message of the protesters would get derailed as the outsiders brought their own agendas to the scene. I’m pretty sure I saw some protest signs about Gaza and bankers.

Instead, it all just kind of fell apart, starting on Tuesday. I’m not sure why. Maybe it was a change in police tactics. When police saw someone throwing dangerous objects or brandishing a weapon, instead of gassing the crowd, they would just swarm in, grab the people causing trouble, and quickly retreat. They’ve also stopped trying to enforce a curfew or hold a an arbitrary line on the streets. They had figured out a way to go back to the basic police mission of protecting the mass of the citizens from the relatively small number of miscreants. The more peaceful protesters had always been angry at the troublemakers, so I think this relieved the tension a bit.

Maybe it was the media circus. By some estimates, Tuesday night’s crowd held more members of the media than Ferguson residents. It was getting a bit silly. On the other hand, perhaps Ferguson residents finally felt their concerns were being heard by someone.

Or maybe the protests just ran down as part of their natural course. People worked through their anger and returned back to their normal lives.

Now I guess the question is what happens next? Will Michael Brown’s death be brushed under the rug once people stop looking? Or has all this attention created enough pressure on the local and state government to ensure that a thorough investigation takes place and justice is served? Or will police and prosecutors railroad Darren Wilson in order to gain political approval? And what will happen to the really awful police and government of Ferguson? Will Antonio French succeed in his voter drive to run them out? Or will whatever kept them in power ’til now keep working?

And what about the larger issues? Following along through the internet, it certainly felt like something of national importance was happening in Ferguson. But that might just be an illusion; I was intensely interested, so I noticed how much everyone else was interested. Still, it brought attention back to the issue of policing in minority communities, and it attracted a lot of scrutiny to Ferguson and the St. Louis County area in particular. It also attracted some much-needed attention to the issue of police militarization.

Maybe this has all been a step down the road toward some change. I have my doubts, but I certainly hope so.

Ferguson a Week Later

After a pretty good Thursday night, things got tense on Friday. Cops were guarding some stores, but they were attacked by a few of the protesters and several officers were injured. The police then retreated to a perimeter, which resulted in a situation eerily reminiscent of the 1992 L.A. riots, when the police withdrew from whole areas of the city, leaving residents to fend for themselves.

A bunch of teenagers began looting some of the stores, and Ferguson residents moved to block the looters and protect the stores, essentially providing their own police protection. They weren’t entirely successful and some of the stores were heavily looted. At one point a fire broke out in one store, and residents entered it and used bottles of soda to extinguish it, thus also taking on the duties of the fire department.

(I was watching some live streaming video from a guy with a cell phone, and I got to see one of the young black men guarding a storefront get a call from his mother and then turn the phone over to an Al Jazeera correspondent who had been interviewing him. The correspondent then assured the women that her son was behaving “very responsibly.”  The 21st century is a very strange place.)

I’ve since heard that the police retreat was arranged between community leaders and the police commander, but it was weird having cops posted close enough to antagonize people but not doing anything to, you know, fight crime.

Friday, Missouri Governor Jay Nixon declared a state of emergency in Ferguson, and imposed a curfew from midnight to 5 am. I really don’t understand this police obsession with people being out late at night. First of all, it’s Saturday night, and they want everyone to be home by midnight?

And are there no night jobs in Ferguson? I know there’s a 24-hour Walmart, but it looks like that’s in St. Louis. Still, there must be gas stations or convenience stores. And of course bars, although police probably consider them to be part of the problem.

Anyway, I followed events on Twitter last night, and the curfew went about as well as you’d expect. Tell the people of Ferguson they have to be off the streets at midnight, and everybody interprets it the same way: There will be a clash between protesters and cops at midnight. It was like the governor had announced the schedule for a sporting event.

Team Black showed up early in the evening, as usual. Community leaders such as Antonio French urged residents to go home before the curfew, as did the New Black Panthers, who also formed a buffer zone at times between protesters and the cops to try to keep things peaceful.

By midnight there were only a few hundred people in the streets, and a large portion of the press was packed into a sort of First Amendment pit at one end of the protest area. A number of reporters had defied the curfew by moving out into the neighborhood, and the folks at VICE News were live-streaming video from their position in the crowd, thus blatantly documenting their disregard for the curfew.

Team Blue took the field shortly thereafter, as rather a lot of cops with riot gear and armored vehicles gathered in front of the journalist holding area. One of the vehicles had a sniper-looking guy on top, although SWAT snipers also function as observers, so this wasn’t necessarily as threatening as it appeared. They began clearing the street with smoke rounds and then, in violation of an earlier promise made by Capt. Johnson, they fired tear gas as well.

Afterwards, the police explained that as they closed in, someone in the crowd began shooting — seriously wounding another person in the crowd — and the police used tear gas in response. They were unable to capture the shooter.

The night was pretty much quiet after that. The curfew will be in effect again tonight, so I expect everyone to set it off around midnight again.

Ferguson Turns On a Dime

I tried, I really did. When I first heard about the shooting of Michael Brown by a Ferguson, Missouri police officer, I tried to give them the benefit of the doubt.

A lot of police shootings are perfectly legitimate, stopping bad people from doing bad things. Beyond that, there are cases where the victim didn’t deserve to get shot, but you can understand why it happened — people who were holding toy guns, cops who mistook a harmless object for a gun, accidental discharges, confusing situations, shots that miss the target and hit someone else. These may involve various degrees of recklessness or risk on the part of the shooter, but they aren’t straight-up murders.

The most prominent witness, Dorian Johnson, describes something that sounds an awful lot like a murder:

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

That sounds pretty bad, but there’s no way for me to tell if Johnson is mistaken or even lying. For all I know, he never even met Brown; it wouldn’t be the first time a supposed witness had completely fabricated a story to get attention. It was certainly possible that this was just a terrible mistake. In theory.

Then we all got to see how police work is done in St. Louis County, and in Ferguson in particular. For several nights, peaceful protesters have been met with heavily armed riot cops. On Wednesday, police announced that protests would be allowed during the day, but that a curfew would be enforced at night.

Why? Why should people not be able to go outside late at night in their own neighborhood? As Lt. Max Geron of the Dallas police says,

“Most protesters will meet, protest, and go home when they feel they’ve made their point. If they aren’t breaking any laws, they can be left to express themselves.” Establishing a dispersal time then gives protesters something to rebel against. “When you establish arbitrary rules that have no basis in law, the police then feel they have to enforce those rules or they look illegitimate. They can set these rules with the best of intentions, but they just end up creating more problems for themselves.”

The police in Ferguson did set a curfew time, and to deal with the problems they created, police sent about a platoon of SWAT (-ish) officers, complete with armored vehicles and a sniper on the roof, as seen in this shot by The Huffington Post‘s Ryan Reilly:

Heavily-armed SWAT-like cops doing crowd control in Ferguson, MO. Photo by Ryan Reilly 2014-08-13
Heavily Armed Crowd Control

As night fell, the police tried to move the protesters off the streets. They started with a sort of Jedi mind trick, thanking the protesters for leaving before they actually left, and then telling the protesters that they should join their friends who had left. It was pretty funny in a sort of creepy not-getting-the-joke kind of way. (“You should probably leave now. All the the really cool people have left. You don’t want to be a loser by staying…” wasn’t actually what they said, but that was the undertone.)

Then came the teargas, followed by a handful of Molotov cocktails from the protesters, followed by more teargas. For an example of what that’s like, check out this video taken a little later in the night by Polarbear Productions of the police trying to drive off a crowd standing in the street. It starts with the loud chirp of an LRAD crowd control weapon in warning mode — followed by a barrage of smoke or teargas and rubber bullets.

This is no way to treat people who are just hanging out in their own neighborhood. “Not disbursing,” regardless of how they charge it, isn’t what you’d call a real crime.

The police in Ferguson also expended a lot of effort trying to stop people from recording them or reporting on what they were doing. Ryan Reilly was detained with Wesley Lowery from the Washington Post while they were hanging out at a McDonald’s restaurant tweeting and recharging their phones. (For God’s sake, somebody get these people external battery packs!) The police told them they were being arrested on trespassing charges, but after Matt Pearce from the Los Angeles Times called the police chief for a statement about it, they were kicked loose without any paperwork.

I think it was probably arresting the reporters (and also St. Louis Alderman Antonio French who was tweeting from the scene) that drew a lot of mainstream media attention. More politicians have weighed in on the matter, and the Missouri State Police have moved in to replace the St. Louis County police.

Stunningly, that seems to have changed everything. The state troopers are led by Capt. Ron Johnson who (a) is black and (b) has really good leadership skills. He seems to have taken a page out of Salt Lake City Police Chief Chris Burbank’s protest playbook, because he and his men showed up in regular uniforms rather than riot gear, they didn’t bring rifles or armored vehicles or tear gas, and they just began mingling with the crowd, talking to them and marching down the street with them. (From some of the reports, it sounds like the police are staged nearby and are keeping an eye on the area, because there were a few minor incidents and the cop cars showed up immediately to deal with the problem.) After a while, a lot of the cops just left the area, and the residents of Ferguson had their streets to themselves. Just a bunch of people hanging out at an outdoor event in the neighborhood.

Maybe I’m just fooling myself, but based on what I’m reading on Twitter, it felt last night like the situation had settled down. The reporters gave up hunting for conflict and shuffled off to their hotels. Obviously, things could still have gone wrong — there are rumblings on Twitter all the timee — and it could still slip out of control with another fatal gunshot, but it no longer feels like that fatal gunshot is imminent.

So the immediate threat of violence has abated, and the long-term solution to American race relations is still a work in progress. That just leaves the original problem that started it all: The circumstances of Michael Brown’s death. To give you some idea of where I’m going with this, up until last night — before Capt. Ron Johnson filled the world with brotherly love — my original title for this post was “Fuck Tha Ferguson Police In Particular.”

Given how badly the police have handled everything else in Ferguson — and I realize it was the St. Louis County cops who deployed their SWAT team, not the Ferguson cops, but it’s all happening on Ferguson’s patch and to the people the Ferguson cops are supposed to protect and serve — I don’t see any reason to think they give a damn about the people of Ferguson. At least not the black ones. This seems like exactly the kind of environment that would tolerate the kind of cop that would someday lose his temper and execute a young black man. And then try to cover up the crime.

At this point, I’m pretty sure the Ferguson police are capable of anything. We know they attack peaceful protesters, I think they’re harboring a murderous cop, and frankly, I’d like to know where all of them were when Biggie and Tupac got shot.

This tweet actually sums it up pretty well:

I had to go to sleep before I could finish this post, and now I see that the night was fairly peaceful, and that the Ferguson police department has made good on their promise to reveal the shooter’s name, which is Darren Wilson.

They’ve also picked this moment to reveal that they believe Michael Brown was a suspect in a what is either a strong-armed robbery or shoplifting at a nearby store. Obviously, as everyone is tiresomely point out, that’s not a reason to kill him. However, if it’s true, it makes it more plausible that he responded violently when confronted by Wilson. Ferguson police also say Dorian Johnson was involved in the same robbery/shoplifting incident, which would cast doubt on his credibility as a witness.

That said, the Ferguson police have not, as far as I know, said anything to contradict Dorian Johnson’s account of the shooting, which is that Wilson shot Brown in the back from some distance and then shot him again while he was surrendering. Nothing Brown did beforehand could possibly justify that.

Which makes it kind of weird that the police would release the report about Brown at this time. It’s almost like they were pissed off at having to reveal the shooter’s name, so they decided to smear Brown’s memory in retaliation, even though it has very little to do with officer Wilson’s behavior.

You know, after Capt. Johnson’s performance at calming things down last night, I was wondering how the Ferguson police would attempt to snatch defeat from the jaws of victory. Sigh. Hopefully the peace will hold for another night.

One other note: Police initially refused to name the officer who shot Brown, claiming there were security concerns, and earlier I said that sounded reasonable. But now that I think about it, I’m not convinced. We’ve known that NYPD officer Daniel Pantaleo apparently killed Erik Garner in New York for weeks, and he’s still okay. Out of all the thousands of officers who have killed people, how many times have any of them been the victim of retaliatory violence? Heck, FBI sniper Lon Horiuchi shot and killed Victoria Weaver at Ruby Ridge, an event which angered an awful lot of people, including a large number of well-armed right-wing nut jobs, and he’s still fine 22 years later.

#Ferguson

The news out of Ferguson, Missouri has had me riveted to Twitter. St. Louis Alderman Antonio French has been tweeting and posting Vine videos from Ferguson for days, and Wesley Lowery from the Washington Post has been tweeting regularly and he’s got an article up. If you haven’t been following the story, Dara Lind at Vox has a pretty good summary.

Tear Gas in the streets of Ferguson, MO. Photo by @WesleyLowery 2014-08-11
Tear Gas In Ferguson

When this story first broke, I found myself conflicted over how to react to it. I was angry that a police officer shot Michael Brown for no good reason…if that’s really what happened. There’s been no definitive information either way, but subsequent events have not exactly painted a rosy picture of the Ferguson Police Department.

About a year and a half ago, I blogged about Colin Flaherty’s racist slant on news reports of black violence:

You can see what Flaherty’s doing here. He has obsessively curated a collection of reports of violent incidents at establishments frequented by black people, probably because they are in black neighborhoods. These are real incidents — sometimes an idiot cutting in line at a sale, and sometimes a dozen or so kids who might be gang members — but Flaherty tries to portray these incidents as mob action by attributing the violence to every black person in the building. Thus a fight between a handful of teenagers in a mall food court becomes, in his mind, a riot by every black person in the mall.

I’ve seen a bit of the same thing on Twitter and in some news reports regarding the events in Ferguson. The first night, right after the shooting, everything actually went pretty smoothly in Ferguson and the protests ended somewhat peacefully. However, there were several reports of protesters chanting “Kill the police!” But from what I could find, it sounds like at most a handful of protesters might have yelled that, and some people just attributed it to all the protesters.

On Sunday night some protesters were looting stores, at least one of which was set on fire.

Monday night’s protests were more peaceful, but the police responded in force, apparently using Warrior Cop as a guidebook for dealing with protesting citizens. They eventually cleared the streets with tear gas and some kind of non-lethal projectiles. They also ordered the press in particular to leave the area — even calling press offices and telling them to call in their reporters — which doesn’t sound legal.

It’s not generally a good sign when government forces don’t want the press around, although it’s hard to believe they thought they could keep anything shady out of the news in an age when so many people have cell phones. For example, Ray Downs at the Riverfront Times has protester-recorded video of cops reportedly launching tear gas at people standing in their own yard. (Note: There is rather a lot of swearing.)

That’s not to say the professional press hasn’t been getting some good pictures. In part, that’s because the protesters are making an effort to set them up. I’m particularly impressed by this emerging protest tactic captured by Ben Kesling of the Wall Street Journal.

Photo of a protestor with his hand in the air by Ben Kesling of the Wall Street Journal.
Hands Up, Don't Shoot

Here’s another one by journalism student Markia Holt:

Photo of protestors with hands in the air by Markia Holt.
Hands Up, Don't Shoot

I think that’s just brilliant. By holding up their hands and yelling “Don’t Shoot,” they are submitting to authority, and yet because Michael Brown was supposedly doing the same thing when he was shot, they are rather vividly calling to mind the police violence that started it all. They’ve managed to add an undertone of “fuck you” to a surrender ritual. It’s almost Gandhi-esque.

One more example, this time from Whitney Curtis of the New York Times. I’ve been seeing this everywhere:

Riot police confront an unarmed young black man with his hands in the air in Ferguson, MO. Photo by Whitney Curtis for the New York Times. 2014-08-12
Riot Police Confront a Protestor

That photo image is a little fuzzy, but in tribute to the late Joel Rosenberg, firearms instructor and a one-time co-blogger here, I think I have to make one particular comment: Get your finger off the trigger, dumbass!

Detail of photo in which riot police confront an unarmed young black man with his hands in the air in Ferguson, MO. Photo by Whitney Curtis for the New York Times. 2014-08-12
Rule 2 Violation

It’s still not clear what the hell happened Saturday night between Michael Brown and the officer who killed him. As I’m writing this, St. Louis County Police have not released many details from their investigation. As is usually the case, they haven’t even released the name of the officer who shot Brown. Given the unrest in the streets, I can understand their concern for the officer’s safety, especially if he has a family. On the other hand, you know what we call it when anonymous government functionaries kill citizens without consequence? A death squad. Let’s hope the St. Louis County police eventually see their way toward transparency.

One thing the police have revealed about the shooting is their contention that Brown attacked the officer in his car and tried to take his gun. As I mentioned before, this kind of close quarters struggle over a weapon is just about the only situation that could justify shooting an unarmed man.

In an interview with Trymaine Lee at MSNBC, a friend of Brown’s named Dorian Johnson tells a very different story:

Now, in line with the officer’s driver’s side door, they could see the officer’s face. They heard him say something to the effect of, “what’d you say?” At the same time, Johnson says the officer attempted to thrust his door open but the door slammed into Brown and bounced closed. Johnson says the officer, with his left hand, grabbed Brown by the neck.“I could see the muscles in his forearm,” Johnson said. “Mike was trying to get away from being choked.”

“They’re not wrestling so much as his arm went from his throat to now clenched on his shirt,” Johnson explained of the scene between Brown and the officer. “It’s like tug of war. He’s trying to pull him in. He’s pulling away, that’s when I heard, ‘I’m gonna shoot you.’”

“I seen the barrel of the gun pointed at my friend,” he said. “He had it pointed at him and said ‘I’ll shoot,’ one more time.”

A second later Johnson said he heard the first shot go off.

“I seen the fire come out of the barrell,” he said. “I could see so vividly what was going on because I was so close.”

Johnson says he was within arm’s reach of both Brown and the officer. He looked over at Brown and saw blood pooling through his shirt on the right side of the body.

“The whole time [the officer] was holding my friend until the gun went off,” Johnson noted.

Brown and Johnson took off running together. There were three cars lined up along the side of the street. Johnson says he ducked behind the first car, whose two passengers were screaming. Crouching down a bit, he watched Brown run past.

“Keep running, bro!,” he said Brown yelled. Then Brown yelled it a second time. Those would be the last words Johnson’s friend, “Big Mike,” would ever say to him.

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

It sounds plausible, and the struggle at the car comports with police claims. I think it’s possible that the officer and Brown got into some kind of struggle — perhaps when the officer pulled up and grabbed him — and perhaps the officer got angry and shot… Or perhaps, from his standing position outside the car, Brown started to get the better of the officer, who felt the need to pull his gun and defend himself… I can almost make this work as a terrible misunderstanding…

But not if the rest of Johnson’s story is true. Not if the officer shot a fleeing man in the back and then gunned him down as he surrendered. That would be murder.

Of course, Dorian Johnson could be lying. I have no way of knowing. I’ve heard that other witness accounts are similar, but I don’t know much about them.

The police are supposed to be investigating, but they’ve been behaving a little strangely. For one thing, as of earlier today they still haven’t interviewed Johnson, according to his lawyer. I don’t know how the police normally handle these kinds of investigations, but I would think a close eyewitness is someone they’d want to talk to. Even if they think Johnson is a lying little weasel who’s covering for his dead friend, wouldn’t investigators at least want to get his statement to lock it down?

Then there’s the autopsy, about which something was just released:

It shows he died as the result of gunshot wounds. Police won’t specify how many times the teen was shot.

The autopsy was done by the St. Louis County Medical Examiner’s office on Sunday, the day after Brown was shot.

Police won’t release any further details of the autopsy, pending the results of toxicology tests. Those should be available in the next four weeks.

I’m not sure why the police would be delaying the release of this information. They’re going to have to release the body to the family pretty soon, at which point the family will be able to get their own answers.

One of the things I’ve been trying to understand is why this killing has produced such an explosive reaction. There wasn’t this much of a reaction when NYPD Officer Daniel Pantaleo apparently strangled Eric Garner. And there wasn’t this much protesting when Beavercreek, Ohio police officers Sean Williams and David Darkow shot John Crawford III after he failed to put down a realistic-looking air rifle. But then I guess I’m answering my own question. There has been a rash of killings of black men by cops, including Ezell Ford, killed in LA on Monday. Not all necessarily the result of evil intent, but killings nonetheless.

Meanwhile, night has fallen on Ferguson, and Twitter is full of rumors of a shooting.

Something happening in Ferguson, OH the night of 2014-08-12. Photo by Antonio French.
Ferguson Tonight

Another Cop Shoots Another Black Kid

I hate this kind of story.

Reportedly an as yet unnamed police officer in the St. Louis suburb of Ferguson, Missouri has shot and killed an unarmed 18-year-old black kid named Michael Brown. Area residents gathered in the street, there was shouting, police assembled to try to keep order, there was a bit of a riot, and eventually things quieted down without too much damage.

The most important word in that last sentence was “reportedly.”

The early reports on breaking stories like this are often inaccurate. Some eyewitnesses have said Brown was surrendering, others say he was running away. At least one eyewitness has said the officer walked up to Brown while he was lying on the street and shot him in the back a few more times.

Who do we believe? The police? The eyewitnesses? Given what we know about eyewitness testimony, and the fact that their stories conflict, which eyewitness should we believe? We don’t even know if they really were eyewitnesses. That account of a cold-blooded street execution seems like something someone would make up to cause trouble. In a crowded urban area with thousands of people, there’s got to be at least one person crazy enough to want to insert himself into the story by running up to the first reporter on the scene and making up an exciting story. Or they could be completely honest witnesses who saw a cop commit a horrifying crime.

But unless the officer deliberately killed Brown, it’s probably not a murder, in which case it might be some lesser crime having to do with recklessness or depravity or some manner of culpable error. Or it might fall into the category of what I’ve sometimes heard called an “excusable” shooting, meaning that the victim didn’t deserve to die, but that the officer isn’t to blame. That is, he made an honest mistake.

(Shooting someone who was wielding a realistic-looking toy gun is a classic example of an excusable shooting. The resulting death is wrong and unnecessary, but you can understand why the officer believed he was doing the right thing at the time.)

On the other hand, if Michael Brown really was unarmed, which seems likely (but not certain) since the police haven’t reported finding a weapon, then there’s almost no way this can turn out to be a justified shooting. If this were a justified shooting, that would mean we thought the officer did the right thing, and if another officer found himself in the same situation, we would want him to do the same thing. If this were a justified shooting, that would mean the officer was in fear for his life and shot in self defense. Which seems unlikely, given that Michael Brown had no weapon.

Unless…

The only way I can think of that the officer would be justified in shooting an unarmed person is if that unarmed person attacked the officer at close quarters and tried to take his gun. Then the officer might have no choice but to shoot to defend himself.

Which brings me to this:

An unarmed teenager killed Saturday by Ferguson police, spawning continuing community unrest, had struggled for an officer’s gun in a patrol car first, officials announced this morning.

So the story being told by the police is exactly the one that would justify the shooting. It would exonerate the officer, justify his actions, and make it more difficult for Brown’s family to sue the city. Which is convenient for the cops.

But that doesn’t make it untrue. Maybe the cop who shot Brown is telling a self-defense story not because it’s the only one that clears him but because self-defense is the only reason he would shoot an unarmed kid.

I hate this kind of story.

I should point out that calling a shooting “justified” or “excusable” is not legal terminology, at least not the way I’m using it. I don’t remember where I first heard the terms used that way to classify non-murderous shootings, but it seems to me like a helpful way to think about the right and wrong of lethal force.

I should also point out that by the time you read this, and maybe even before I publish this, some important part of the story could change, and some or all of the possibilities I discussed above could be ruled out by events. That won’t stop people with agendas from picking sides before all the facts are known.

I really hate this kind of story.

Update: Just so I don’t come across as a complete narcissist, I am angry that a cop gunned down an unarmed black kid for no good reason…if that’s what happened. Fuck. I think I should be angry. In fact, I’m pretty sure I should be angry. Heck, I practically want to be angry. But I don’t know if I should be angry. Crap. I hate this kind of story.

Is The Legal Field Ready for CSO?

A couple of days ago, Scott Greenfield was writing about some of the complexities of federal sentencing, when a commenter named Jake proposed a crazy solution:

Was there ever a task in the courtroom more ripe for automation?

Well, yes, there’s tons of administrative crap that can be, or has been, automated. However, Jake had a particular problem in mind that he’d like to solve:

As a representative of the ignorant masses, I find comfort in the notion that everyone would be given sentences using the same criteria, and never again subjected to the whimsy of some of the judges I’ve read about on this blog.

Scott is in agreement with him as to the goal:

This “problem,” that judges impose disparate sentences on seemingly like-situated defendants, has long been a vexing problem. It was one of the foundational arguments for the Sentencing Guidelines, to create greater consistency in sentencing across the country, so that a judge sentencing a defendant in a drug conspiracy in Wichita would impose a sentence reasonably the same as one in Brooklyn.  Consistency was the goal, and from a substantial distance, it appeared to achieve that goal.

The problem was that it failed miserably to accommodate the myriad personal details that comprise the heart of sentencing. Indeed, it precluded judges from doing so, forcing lawyers into striving mightily to come up with arguments about why their defendant’s circumstances fell outside the “heartland” of the guidelines.  Most of the time, these arguments failed. One size fits all sentencing was imposed, and those who feared mercy slept well at night.

Interestingly, a commenter named David hit on the obvious solution almost immediately, which is to use a randomly assembled team of sentencing judges and take the average of their sentences as the final sentencing result (with some complications if the sentences don’t converge sufficiently). Scott dismisses this idea as off-topic, but in fact it directly addresses the exact problem Scott described. Because the judges wouldn’t be working from a strict guideline, they are free as judges to “accommodate the myriad personal details that comprise the heart of sentencing.” Yet because they are averaging the sentences across a group of judges, there will be less likelihood of imposing “disparate sentences on seemingly like-situated defendants.”

That conclusion falls out of some basic math and statistics. If you have a sample population that exhibits a certain variance between samples — such as judges passing sentences — and you collect the samples into groups, then the variance between the group averages will be smaller than the variance between the individual samples. This is why diversifying a stock portfolio reduces risk, and it’s why people pool their risk by purchasing insurance for disasters they can’t afford. Since each judge’s sentence is averaged in with the others, no single judge indulging his whim can change the sentence too much.

This is, of course, a highly impractical idea that would be difficult to organize and expensive to operate. (Although lots of sporting events use it, and shouldn’t criminal sentencing be at least as orderly as the judging in Olympic ice dancing?) However, it’s still a lot more realistic than the idea of automated sentencing.

Actually, Jake may have been imagining something fairly modest. Perhaps he only meant to automate the calculations. I’m pretty sure that lawyers who have to work with the guidelines already have worksheets and spreadsheets for that. It wouldn’t be much of a step to write some sort of program that asks questions or presents forms to fill out and then calculates the sentencing range, kind of like TurboTax for federal sentencing.

I’m surprised there isn’t an iPad app for that already. I tried looking for one, but all I could find were copies of the guidelines that you could install. There was nothing to help with the calculations. There is the U.S. Federal Sentencing Guidelines calculator website written by Josh Goldfoot, which seems to walk you through a sentencing calculation, but that was just a personal project that appears to no longer be maintained. In any case, it’s certainly a doable project.

But it may not be a worthwhile project. After all, when it comes to automating things on a computer, the calculations are the easy part. The hard part is the work done by the lawyers and judges: Interpreting the guidelines and determining whether or not they apply to a particular case. It’s probably not possible with current technology to teach a computer to think like a lawyer.

But maybe we can cheat. That’s what Google does.

Search engines can do some amazing things these days, but they don’t actually understand what’s written on a web page. The science of natural language understanding hasn’t yet come far enough for computer programs to understand a natural human language the way humans do. What Google does is generate complex statistical information about the words on web pages, and then it observes human behavior in creating and clicking on links to determine which pages have information that is relevant to user queries. Google doesn’t understand (at least not the way a human would) what’s written on a web page, or what a user wants from a query, but that doesn’t stop it from “learning” how to help people find information.

The legal world has already begun to use this kind of machine learning technology during e-discovery to make document review more efficient. If a party to litigation responds to a discovery request with 100,000 documents, the other side will have to have a team of lawyers review the documents to decide which ones are actually relevant to the matter at hand. If those documents are in electronic form, however, it’s possible to use predictive coding to speed up the review process.

The way it works is that the document review team starts by reviewing a representative sample of the document set, scoring each document based on what relevance it might have to the case. The predictive coding software generates statistical summaries of the documents, and it uses those statistical summaries to analyze the choices made by the human document reviewers. This is similar in concept to the way Google looks at how people use links on the web. The software then tries to predict how the human reviewers would score all of the remaining documents. This guess can then be used to prioritize the review of the remaining documents, to try to find the most useful material as soon as possible.

In theory, we should be able to build a Sentence-O-Matic 1000TM using the same principles. We would start with a training set of documents from, say, 100,000 criminal cases. We’d input all of it into a machine learning system. Some of the data would be structured values, such as the identity of the laws under which the defendant is being charged, his prior convictions, and demographics data. Much of the data, however, would simply be the text of the documents themselves, along with tags to identify what they are — motions, briefings, arguments, testimony, transcripts, and so on. The data would also have to include the resulting sentence.

We’d then let the system crunch on the data for a while, to try to find relationship rules between the structured and unstructured data about the cases and the resulting sentences. It could, for example, discover that certain words in certain documents in certain types of cases are correlated with higher or lower sentences. Once we have a complete set of rules, we can run the algorithm the other way around: We feed documents from another test set of, say, 10,000 cases, and let it apply the rules to predict the sentences, and we score it on the accuracy of the result. We repeat the learn-and-test cycle over and over, tweaking the algorithms each time, until it’s accurate enough for our purposes. The resulting system will respond like a hypothetical average judge.

At least that’s the theory.

And it’s a theory that sometimes works. Predictive coding for e-discovery is a real thing, and there’s a reason why so many of the world’s browsers use Google as their home page. But from what I know about predictive analytics, it’s not ready for a task like this. It’s great for supporting a human task — finding websites to read or prioritizing documents for review — but I can’t see it replacing humans at critical tasks. There’s a reason we don’t use analytics engines to replace doctors or engineers, and I can’t see them replacing lawyers or judges either.

(Remember back when a lot of companies tried using automated document searches in place of customer service representatives for emailed support questions? That didn’t work out very well, did it?)

Of course, if we actually did try something like this, you know what would happen, right? All of those annoying SEO “experts” would start offering their Criminal Sentencing Optimization (CSO) services to lawyers, to help them prepare documents that are stuffed full of whatever it takes to game the Sentence-O-Matic. “We’ll show you how to fill your briefs with proven sentence-reducing keywords!”

I don’t think anyone wants to live in that world.

What Could Be Worse Than Raising the Minimum Wage?

I see that our mayor has proposed a city ordinance to raise Chicago’s minimum wage to $13 an hour. The current minimum wage in Illinois is $8.25/hour, a buck over the federal minimum, so that amounts to a 58% hike. This follows Seattle’s decision to increase their minimum wage to $15 a few months ago, and it’s in step with attempts to raise both the Illinois and federal minimum wages.

There are a number of arguments against raising the minimum wage — it’s poorly targeted, it causes economic distortions, it’s unfair — but the one that attracts the most attention is the argument that increasing the minimum wage will cause a drop in employment among the kinds of workers who earn minimum wage.

Exactly how the job market responds to increases in the minimum wage is a somewhat murky issue, and research on the effects of raising the minimum wage have been inconclusive. However, the idea that increasing the minimum wage will hurt employment is not based on some esoteric theoretical proposition that has caught economists’ fancy. It’s based on a very broad theory that has proven itself often: When the cost of something goes up, people will buy less of it.

It’s that simple. The whole world of commerce is built around that theory, and we see it working every day. For example, it’s a lot easier to eat at a restaurant than to make dinner at home, and restaurant food likely offers better taste and more variety, and yet people don’t eat dinner out every day, because restaurants are more costly than eating at home. Alternatively, if you’re at the grocery store and you notice a great sale on your favorite food, you’ll probably buy more, which means that before it went on sale, the higher price was making you buy less. That quantity demanded declines as prices increase is pretty much the way of the world.

Therefore, I think we can safely say that raising the minimum wage (1) increases the income of low-skilled workers who were earning less than the minimum wage, (2) raises the cost of hiring low-skilled workers, and therefore (3) makes hiring low-skilled workers less attractive for employers. The benefit of increased pay comes in exchange for increased labor costs for employers.

Still, raising the minimum wage does provide some benefit to low-skilled employees, and it may even provide a net benefit, since the people who lose their jobs will be losing crappy minimum wage jobs. There are worse ways to help low-skilled workers.

As proof of that, Sarah Jaffe at In These Times is touting an even worse idea: The Bad Boss Tax.

As conceived, the “bad business fee” legislation would require companies to disclose how many of their employees are receiving public assistance from the state or federal government. Companies would then pay a fine based on the de facto subsidies they receive by externalizing labor costs onto taxpayers.

Some of the proposals for implementing this “bad business fee” would be a compliance nightmare:

The fee might be implemented on a per-employee basis—in Cook County, Illinois, NPA and JWJ partners are considering a $5,000 charge for each employee receiving public assistance—or as a lump sum based on how much an entire sector costs taxpayers, which would then be split up among the employers in that sector. The organizers also want to hold big businesses accountable for their supply chains and franchisees. For instance, if McDonald’s Corporation got slapped with a fee for each restaurant that underpays its workers, it could be pushed to include higher wages in its franchise contracts. Similarly, if Walmart had to pay not just for its retail employees, but the workers in its warehouses, it might have an incentive to require better wages from subcontractors.

Well, whatever else it does, this will certainly increase employment of accountants and lawyers. I mean, can you imagine the nightmare of a business having to obtain these reports from dozens or hundreds of suppliers and thousands of franchisees?

And can anyone seriously believe that charging businesses $5000 for hiring people who are on public assistance will not discourage businesses from hiring people who are on public assistance? How will low-skilled laborers acquire the skills they need to get off public assistance if we make it harder for businesses to give them jobs?

In fact, the low-skilled laborers are being cut out of the process almost completely. As with raising the minimum wage, the bad boss tax would also take money away from businesses that hire low-skilled workers, making them less attractive as employees, but at least increasing the minimum wage funnels the money from employers to low-skilled employees. The “bad business fee,” on the other hand, would take money from employers and give it to the government.

To be sure, the money would only be used to fund the finest of progressive social programs:

At a municipal level, Murray explains, the money could go to an existing development department that could manage and distribute the money. On a statewide level, it could be distributed through the revenue department as a tax break for workers. There’s also the possibility of distributing some of the funds to nonprofits involved with direct worker support, childcare or food assistance.

McGrath says the money could go to bolster the public services that workers rely on, or to hire more people to enforce wage and hour laws. “Minnesota succeeded in raising its minimum wageto $9.50 an hour by 2016 and indexing it to inflation,” he says. “But we have a paltry number of wage and hour investigators in our state. How will we know that people are actually being paid the wage that was just won?”

Elsewhere, other community and labor partners are busy brainstorming about what would make sense in their states and cities. In Chicago, housing subsidies are a possibility; in New York, the money could be used to offset the rising costs of public transportation; in San Francisco, a combination of housing and transportation issues is under consideration, as gentrification has rapidly made it harder for low-wage workers to live near their jobs. In New Mexico, using a bad business fee to support early childhood education is being discussed.

This is a familiar pattern for spending on social welfare programs. It seems that wherever you find a recognizable group of disadvantaged people, you will find a buzzing cloud of middle class people who make a living off of providing them with government-paid services. It would be simplest, and arguably most efficient, to just give poor people the money they need to improve their lives, but instead the money is used to hire social workers, clerks, lawyers, psychologists, and childcare specialists or it’s used to fund programs in education, public transit, or housing.

In this case, to be completely cynical about it, the logic at work seems to be, “Those greedy companies aren’t paying workers enough, so we should tax the companies and use the money to hire people like me to provide services to their workers.”

The public choice implications aren’t pretty either. Once there are thousands of people earning a living by providing services paid for by the “bad boss tax” on workers receiving public assistance, won’t that create a constituency that never wants workers to get off public assistance?

In that way, the fee is win-win. If companies seek to avoid it, they end up doing something just as good for their employees, or even better. Martin says, “For me in particular, the better part is my boss may be thinking, ‘Well, I should just pay my employees better. I should just pay a living wage. I should just give Cliff some benefits.’ ”

Or “Cliff shows promise and I was thinking of promoting him, but now I can’t afford the $5000 I’d have to pay to keep him around. Better to terminate him and give the hours to Mary and Bill.”

Or “I should just terminate Cliff and Mary and Bill and replace all three of them with one employee trained to operate the machine that does their job.”

I think proponents of this idea are sacrificing the welfare of the people they claim to be helping so that they can revel in the joy of punishing businesses they don’t like.

What Democracy’s All About?

NYPD Police Commissioner Bill Bratton has been taking a lot of crap, deservedly so, for his comments after Eric Garner died while being arrested for selling untaxed cigarettes on the street. In a news conference, with mayor Bill de Blasio standing at his side, Bratton came out full-authoritarian:

According to Mayor de Blasio and Police Commissioner Bratton, the NYPD will continue to strictly enforce laws against loosie peddlers and subway dancers. “I can understand why any New Yorker may say, that’s not such a big offense,” de Blasio said. “But a violation of the law is a violation of the law.”

Commissioner Bratton added, “We need the public’s help also to appreciate that when an officer does approach you to correct your behavior, that you respond. That’s what democracy is all about.”

I think I sort of understand what Bratton was getting at. I think he was trying to say that we live in a democracy, and that out of respect for that venerable institution, good citizens should cooperate with the people enforce its laws. Of course there’s also the point that democratic government is supposed to exist to serve the people. People like Eric Garner.

I think there are several observations I can make about this whole affair:

  1. Police Commissioner Bill Bratton is a tone-deaf asshole. Right after officers under your command have killed a guy for selling loose cigarettes is not the best time to be lecturing everyone else about their civic duty to cooperate with the police. Bratton and his officers should be thinking about how better to fulfill their own duty to protect and serve.
  2. Laws are sometimes enforced by assholes. Psychopathy is not just for criminals — many psychopaths function well enough in society to stay out of prison. Some of them become businessmen, some of them become politicians, and some of them become cops. Some of them become Sheriff of Maricopa County, Arizona, or Police Commissioner of New York.
  3. It was not the intent of the legislature in enacting cigarette taxes that violators be killed. Bratton’s point about democracy may justify the initial decision to confront Garner, but it doesn’t justify killing him. However that happened, even though it’s probably not murder, the officers were not carrying out the will of their democratic leaders.
  4. Law enforcement is inherently violent. All laws are ultimately enforced through violence. Nobody goes to jail voluntarily. Usually the mere threat of violence is enough to make people cooperate with the justice system — they get into the police car, they show up for court, and they go to jail — because they know that if they refuse to cooperate, they will face violent and even deadly enforcement.
  5. It wasn’t a quality-of-life crime. “Broken windows” enforcement is about going after people who commit minor quality-of-life crimes in order to discourage a cultural of lawlessness. Selling untaxed cigarettes is not a quality-of-life crime, it’s a revenue crime. Garner was improving the quality of life of the people he sold to. But he was depriving the government of revenue.
  6. “Broken windows” isn’t what they say it is. The theory behind “broken windows” enforcement comes from an academic study in which people were more likely to commit a crime if they had reason to believe that nobody cared, such as a nearby broken window. However, as former NYPD Deputy Commissioner Jack Maple discusses in The Crime Fighter, “broken windows” works mostly as a type of pretext stop: Bust a guy for selling loose cigarettes and you get to take his life apart to look for other crimes.
  7. Legislators should know all this. I’m sure if you asked the legislators who passed the law that Garner allegedly broke, they’d tell you they never intended cops to kill people over it, yet the fact that some cops are assholes who kill people is no great secret. The legislators knew the kind of people who would be enforcing their laws and they passed them anyway. The resulting deaths are statistically inevitable. As I’ve said before, I wish legislatures would think about how laws are enforced before they pass them.
  8. If “broken windows” works, they should try it on cops. Maybe if they prosecuted the crap out of these cops and hit them with truly pants-shitting prison sentences, it would discourage the NYPD’s culture of lawlessness.

Sorry for the rant. Just had to work it out of my system.

 

Scattershot: Leaving Cops in the Dust, Shock Doctrine, and CSI: Gallifrey.

Random shots around the web:

  • Yet another case of judges saying you can drive away from the cops. Well, not that you can actually do that, but if you open your window because a cop pulled up behind you, got out of his car, and knocked on your window, you are totally doing that voluntarily for purposes of admissibility of evidence, because you absolutely could have driven away. (I mentioned a similar case here.)
  • According to the synopsis, Naomi Kline, who argued in The Shock Doctrine that right-wing ideologues used disasters to impose their value on others, is arguing in This Changes Everything that climate change is an opportunity for left-wing ideologues to impose their values on others.
  • CSI: Gallifrey.
  • Something stirs from slumber in Bat Country.
  • Making Satan look like a sensible choice.
  • Maggie ruins my fond memories of Scully.

 

Why Obamacare Means Insurance Refunds

At the reliably hyper Addicting Info, Wendy Gittleson is excited over upcoming insurance refunds due to the Affordable Care Act:

In a story that’s bound to send Republicans straight into the spin cycle, it was announced on Thursday that insurance companies will be refunding Americans $332 million because they’ve been overcharging them for healthcare.

That’s about a buck per American. And it’s funny she should mention overcharging, for reasons I’ll get to in a minute.

A generally ignored by Fox News part of the Affordable Care Act (aka, Obamacare) mandates that insurance companies spend at least $.80 of every dollar on *gulp* healthcare. The other $.20 can go toward administrative costs and all the other perks that CEOs of giant insurance companies enjoy. The law is even stricter when the policy is sold to a large employer, with a full 85 percent needing to go to healthcare. In other words, anti-Obamacare people, your insurance company is not charging you more because of Obamacare.

Actually, the ACA tends to push health insurance premiums up for three reasons:

First, the ACA specifies minimum coverage for all health insurance plans that can be used to satisfy the requirements of the Act, and anyone with less inclusive plans will have to switch to a conforming plan. All other things being equal, better coverage costs more, so some people will be paying more for insurance.

Second, the ACA limits the ability of insurers to refuse to cover pre-existing conditions or to charge more for them. To compensate for the losses they take covering people with pre-existing conditions, insurers have to increase the premiums they charge everyone in the plan.

Third, the medical loss ratio requirements of the ACA encourage insurance companies to demand higher premium payments. This is relevant to Gittleson’s post, but it requires a little explanation.

Insurance plans under the ACA are required to pay out at least 80% of premiums as benefits paid for members’ healthcare costs, taking their overhead costs (including profits for investors) out of the remaining 20% of premium payments. If, after everything has settled, it turns out they’ve paid out less than 80% of premiums received, they have to refund enough of the premium to get back up to an 80% payout. (This is what Gittleson is talking about.)

So, for example, if an insurance company took in $1 billion in premiums, it would be required to spend at least $800 million on healthcare. If instead it paid out only $700 million in benefits, it would have to refund $125 million back to plan members to get the loss ratio back to 80%.

It doesn’t work the other way around, however. If the company pays out $900 million in healthcare costs, they don’t get to send plan members a bill for $125 million. They just have to eat the $100 million loss. This asymmetry has consequences.

Assume that a particular insurance plan’s actuaries predict that the company will have to pay out $800 million in claims, and that there’s a 50/50 chance the actual claims will be over or under that amount by $100 million. Before the ACA, the company would estimate its costs at $800 million for payouts and $200 million for overhead costs, which means they’d want to charge $1 billion in premiums. When the year is over, they find out how well they did. If payouts were $900 million, they lose $100 million, but if payouts were $700 million, they’d make an extra $100 million in profits. On average, their outcome would be to have neither extra profits nor extra losses.

(You might be asking why the insurance company wouldn’t just charge an extra $100 million in premiums so they don’t lose money even if claims are $100 million higher. The answer is that I’m assuming that they are setting premium prices as high as they can in a competitive market. Every other insurance company faces the same costs, and therefore can offer insurance at the same price — which, as I said, already includes profit. If any company tried to raise its prices over that of other companies, it would lose all its customers to them.)

Under the ACA, however, the situation is no longer symmetric. With $1 billion in premiums, if payouts were $900 million, they’d lose $100 million that year, but if payouts were $700 million, instead of making an extra $100 million, they’d have to refund $125 million in premiums for a net $25 million dollar loss. So on average, with an equal chance of claims being $100 over or under estimates, the company would lose the average of $100 and $25 million — a projected loss of $62.5 million.

An insurance plan that is designed to lose an average of $62.5 million every year is bad business. To avoid the loss, insurance companies are going to want to raise premiums to $1.125 billion. Then if they had a good year and only paid out $700 million in medical costs over and above their fixed $200 million in operating costs, they would have to refund $250 million, for a loss of $25 million, but if they had a bad year and paid out $900 million in medical costs and $200 million in operating costs, they would make $25 million in profit. Symmetry would have returned, and they would once again have neither extra profits nor extra losses.

(Raising prices because of the incentives in the ACA is not blocked by competitive pressure because every other insurance company is also governed by the ACA and faces the exact same incentives.)

Obviously, I’m greatly oversimplifying, but the basic principle remains: By letting insurance companies take unexpected losses but not allowing them to keep unexpected gains, the ACA is actually encouraging insurance companies to raise their premiums to create a reserve against claims losses.

Note that insurance companies don’t actually make more profits this way, and consumers don’t actually pay any more for healthcare, because the high premiums are eventually refunded to consumers. However, the refunds don’t represent a saving for consumers either: The refunds are coming out of elevated premiums that are caused by the ACA itself.  Obamacare is just forcing insurance companies to take more in premiums so they can give it back as refunds later.

Rebates are not the goal of the Affordable Care Act. In a perfect world, there would be no rebates at all. The idea is that insurance companies will charge the right amount off the bat. The goal is also for the companies to cut overhead.

Costs have been going on the right trajectory. In 2011, the year the law took effect, insurance companies owed their customers $1.1 billion. Last year, that number was cut by more than half, at $500 million. Overhead costs have gone down too – to just 11.5 percent.

That’s a good thing if insurance companies actually cut costs, but that may not be what happened. A lot of people think that insurance companies deliberately underbid their premiums this year in order to gain market share. This is suggested by the reports that a number of insurance companies didn’t participate in the ACA exchanges (presumably priced out of the market by the underbidders) and the expectation that premiums will be increasing next year.

And regardless of what happens over the short term, the ACA sets up some funny incentives over the long term. In my example above, you’ll note that when healthcare costs were high, the insurance companies made more profits, but when healthcare costs were low, the insurance companies lost money because of the way refunds are calculated. The limits on medical loss ratios mean the insurance companies essentially have to live on their 20% of the pie, so naturally they do better when the pie is bigger. In the short run, they still have to compete with each other for customers, so they will want to control increasing medical costs, but in the long run they will do better if medical spending increases.

Unfortunately, increased spending doesn’t necessarily translate to improved health, because the insurance companies will benefit as much from wasteful spending as they will from spending that produces real health benefits.

If cutting overhead to 15-20 percent seems like an unrealistic goal in the free market, perhaps they could learn a lesson or two from Medicare, which conservatively, has an overhead of just 6 percent.

That’s because Medicare recipients typically have higher healthcare costs than the younger people covered by private insurance. It’s easier to keep the overhead down when your non-overhead expenses are proportionately high.

 

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