Awaiting the Grand Jury…

We keep hearing about police plans to respond to protests in Ferguson, Missouri if the grand jury investigating Officer Darren Wilson’s shooting of Michael Brown decides not to return an indictment.

On the other hand, if the grand jury decides to indict Wilson, there would be a warrant for his arrest, and that would mean there’s officially an accused murderer on the loose. And we know he’s got access to weapons, training, and an undisputed willingness to kill, right? So how come we haven’t heard anything about the plans to send SWAT teams to capture him?

Obviously, no one expects Darren Wilson to be indicted. The other clue is that it’s taking so long for the grand jury to announce a decision. If anyone in the prosecutor’s office really thought Wilson was a murderer, do you think they would have allowed him to remain on the streets for three months?

As Jeff Gamso points out, this is a slam-dunk indictment if the prosecutor wants it to be. If you or I had shot Michael Brown, the grand jury proceedings would have gone something like this:

  • Present witness Dorian Johnson, who was present at the shooting, and have him repeat his statements to the media describing how Darren Wilson shot an unarmed Michael Brown in cold blood.
  • Present the medical finding that Brown was shot six times and that he died from the shots.

I’m no lawyer, but I’m pretty sure that’s enough for a murder indictment. There’s no need for cross examination or hearing from the other side. Grand juries proceedings are not a trial, they are the threshold over which an accusation must pass to get to a trial, and it’s a very low threshold. The grand jury just has to think it deserves a trial.

Of course, for them to do that, the prosecutor would have to want them to.

Fast Internet is Not a Free Market

Last week in an opinion piece for Time, Nick Gillespie smacked around Obama’s plan to sneak net neutrality in the back door by having the FCC reclassify internet service providers, essentially regulating them as public utilities. In addition to questioning the tactic, he also slams net neutrality for the usual reasons, which essentially boil down to this:

If you think cable companies and internet service providers (ISPs) absolutely suck at customer service (and they pretty much do), they’re simply faint echoes of the old Bell system, which set the standard for awfulness. … Public utilities and government-granted monopolies — the only sort that actually stick around for very long — are rarely famous for their customer service and innovative practices. … As bad as Comcast or Verizon might be, things can always get worse — and likely will if federal regulators gain more control.

Gillespie goes on to argue that if internet service providers want to provide different levels of service to different sources of content, that may turn out to be a good idea, and in any case, experimentation and customization are usually good things for consumers.

The most likely outcome is that regulators will freeze in place today’s business models, thereby slowing innovation and change. […] That’s never a good idea, especially in an area where new ways of bundling and delivering content are constantly being tried.

I think he’s right about all of that, but unfortunately his argument begins to go off the rails when he discusses the current market structure of internet service providers:

It’s a historical accident that cable companies, who back in the day benefited from monopoly contracts with local governments, have morphed into ISPs.

No, it’s not an accident. The cable companies may have cut monopoly deals with local governments, but their monopoly was never just about providing television programming; it was about controlling the right-of-way to run wires over that last mile from the local point-of-presence to individual businesses and households.

It is true that nobody back then knew we would have something quite like our modern internet, but the technology for using those cables to transmit digital data was already being manufactured. In the 1980’s, I helped install a Zenith Data Systems network that used 6MHz channels flowing over ordinary television broadband cables to transmit data between computers. The concept was to be the middle ground between the small high-speed Local Area Networks (LAN) that were sprouting up in business buildings and the sprawling Wide Area Networks (WAN) that linked businesses across the country using relatively low-speed leased telephone lines. Called the Metropolitan Area Network (MAN), it would allow businesses and residents within a city-sized area to communicate with each other at near-LAN speeds for reasonable costs.

The MANs never really developed that way — instead we have optical fiber in a multi-hub layout that feeds high-speed data to local points of presence — but the cable companies knew all along that data would someday be flowing across their wires, and when that time came, they leveraged their last-mile monopolies to take over the internet service business. That’s one of the things you can do with a monopoly.

According to the FCC’s own findings, the speed and variety of American Internet connections are growing substantially every year. Despite claims that monopolistic ISPs don’t have to listen to customers, 80% of households have at least two providers that can deliver the internet at 10Mbps or faster, which is FCC’s top rating.

For reasons that I can only assume have something to do with regulatory capture, the FCC paints far too rosy a picture of the state of ISP competition. To start with, their top speed rating of 10Mbps isn’t very fast these days. My household has to support the data and video and audio streaming load from three computers, two laptops, two smartphones, an iPad, and a DVR while still permitting pop-free VOIP service for business calls, so I have service at five times that speed, and it’s not the highest speed available.

Another problem with the FCC’s numbers is that classifying services by speed alone does not take into account other factors such as quality of service or even price, and that makes for misleading comparisons. For example, if I look up my home address on the National Broadband Map, it says that in addition to my cable provider, Comcast, there are five companies that can offer me 10Mbps or faster service.

One of them is Everywhere Wireless, which can’t hook me up with service because they specialize in selling WiFi services as a utility for entire multi-unit dwellings such as condominiums and apartment complexes.

The only other provider of high-speed wired service is Platinum Equity, which provides Megapath business-quality internet services at business-sized prices. For my purposes, I would need at least their 10Mbps symmetric service, which costs a whopping $449 per month. It’s not that they’re overpriced, they’re just providing a different kind of service, with a service level agreement specifying minimum performance and availability standards, and truly responsive customer service. I used their slower lower-cost services up until about 5 years ago, and they were excellent.

The remaining three companies — Verizon, AT&T, and T-Mobile — all provide WiFi tethering services over the cellular data network. They have various pricing bundles, but they all essentially charge for the total amount of data transferred. The cheapest plan I could find was about $6/GB, which can get expensive really fast. For example, buying the latest Call of Duty: Advanced Warfare Digital Pro Edition would cost me $100, but downloading it over a cellular data network would set me back an additional $293. I also have 1200GB of data backed up in the cloud over my Comcast connection. If I had been using a cellular network, the initial upload would have cost $7200, and if only 5% of it changed every month, that would add $360/month to my internet bill.

In other words, no one comes close to Comcast at providing the service I want at a price I can afford. It would be nice if that was due to Comcast’s superior technology and cost management, but the ugly truth is that Comcast’s dominance is the result of a decades-long local political battle to keep competition out of the market. As long as that’s the case, I think that some kind of regulation is probably necessary.

But it’s not my first choice. I’d much prefer the FCC to back off and let the free market decide. So if it were up to me, my policy would be that internet service providers only have to comply with net neutrality in locations where they don’t face competition. If they have competition, they could do whatever they want. It would have to be true competition, though, with similar price/performance ratios, and it would have to be on a house-by-house basis: If that customer has a choice of internet providers, then that customer is exempt from net neutrality.

My guess is that we’d pretty much still have net neutrality, because in a competitive market, who would want anything less from their ISP? Unless it came with a steep price discount…

Thinking About Lethal Force – Part 1

We’ve heard a lot of argument about whether or not George Zimmerman’s shooting of Trayvon Martin was murder or self defense, and more recent controversial shootings such as that of Michael Brown by Darren Wilson in Ferguson, Missouri have raised many of the same issues. Some of the disagreements represent a genuine clash of values, but there’s a lot of noise caused by differences in how we receive information about lethal force incidents, how we weigh different aspects of that information, and how we fill in the gaps.

It seemed like a good subject for one of my lengthy thinking-out-loud posts, and indeed I was able to pile up a great many words, some of which may even be worth reading.

When I started writing, however, I realized that in order to write about how we discuss lethal force, I was going to have to write about when it’s okay to use lethal force. That runs into the hazard that anything I write about when it’s okay to use lethal force is going to sound an awful lot like legal advice.

So before I get into this, I want you to understand one thing: This is so not legal advice. I’m not a lawyer, and if you ask me when it’s okay for you to shoot someone, I’ll tell you it is never, ever okay for you to shoot someone, because if you’re looking to me for advice on when to shoot someone, you have no business contemplating shooting people.

That said, I’m going to try to explain some basic ideas about lethal force. These ideas are roughly based on the sort of thing you might be taught in a course on self-defense with a firearm, which in turn is based on self defense law. But my discussion is neither legal advice not self-defense instruction (I’m not qualified for either). Rather , this is more like a primer on how to think about stories in the news that involve lethal force.

I’m going to begin with a discussion of the basics of self-defense and then move out from there into increasingly confusing realms of understanding. I fervently hope that nothing I write makes you stupider for having read it, but as always, there are no guarantees.

Self Defense

I guess I should start by asking, when is it okay to kill someone? In a sense, the correct answer is never. Aside from a few special (and very controversial) situations — war, capital punishment, assisted suicide — it is never okay for Alice to intentionally kill Bob.

However, if Bob is attempting to kill Alice — or any other innocent person — it is okay for Alice to try to stop him. She has the right to self defense, and although self defense is generally supposed to be proportional, the fact that he is trying to kill her means that she can be pretty extreme in her attempt to stop him, up to and including doing things that might kill him.

But her goal can never be just to kill him. Shooting and possibly killing Bob can only be justified when it’s necessary to save a life. The way this is commonly put is that Alice can’t shoot to kill, but she can shoot to stop a killing. Sometimes shooting to kill is the only way to stop an attacker, but that’s the only way it can be justified.

(There may or may not be other actions Alice can ethically shoot to stop, such as severe injury, rape, or kidnapping. We can make our own moral judgements about what’s worth killing for, but Alice would also be judged under the laws where she lives. On the other hand, a pacifist may feel it is never okay for Alice to kill Bob, even if Bob is trying to kill her.)

One important point alluded to above is that in order to defend yourself you have to be innocent. If Bob breaks into Alice’s house at night, Alice may be justified in using lethal force to stop him. But even though her shots endanger Bob’s life, he does not then have the right to shoot at her in self-defense. He’s not innocent, he’s a home invader.

If Bob quickly flees the house to get away from Alice, then he’s no longer a threat, so Alice no longer has the right of self-defense and cannot shoot him as he runs away. If Alice decides to follow Bob out of the house and shoot at his back as he flees the scene, then she is the aggressor, and Bob then he arguably acquires the right to defend himself against her, including the use of lethal force. If he shoots back and wounds her and she drops the gun, then Bob loses the right to self-defense and has to stop shooting. If instead he continues shooting, perhaps to finish her off, then Alice is once again the innocent victim, and she arguably has the right shoot Bob to defend her life.

In a complex confrontation between Alice and Bob, the right of self-defense could switch back and forth multiple times. The reasons that happens — Bob fleeing, Alice dropping the gun, and so on — are exactly the kind of details that often gets left out of early news reports, either because the details aren’t known to the reporters, or because the reporters or their editors don’t recognize the significance of the details.

Interlude: Tragedy

Note that it’s possible to believe both that (a) Alice shot Bob in a righteous act of self defense, and that (b) Bob’s death is a tragedy.

For one thing, Bob did not live in this world alone. There are probably people who will miss him and mourn his loss. Bob was somebody’s son, and he may have been somebody’s brother, husband, father, or friend. Even if Bob turns out to have been a violent asshole intent on raping and murdering Alice, it’s not going to change the way that people feel about the Bob they knew. Even if Bob was killed by police while shooting children at a school, Bob’s parents are still going to cry that he’s gone. No matter how much Bob objectively deserved his fate, nobody who knew him is going to instantly incorporate that fact in their emotional response. The heart doesn’t change direction that fast.

But even if no one misses Bob, many people would argue that his death is still a tragedy. Killing Bob may have been necessary to prevent the loss of innocent life, but that doesn’t mean that Bob’s death isn’t a loss as well. Bob’s death destroys both the bad and the good in him, and we can regret the loss of the good parts, even if Bob brought it on himself. No one is as bad as the worst thing they’ve ever done.

That’s not to say that Alice was wrong to kill Bob in self defense. Alice may have killed him to save her life, and we can approve of her doing so, but it’s no criticism of Alice’s actions to say that it would have been even better if Alice had figured out a way to save her life without killing Bob.

There are of course limits to that sentiment — everyone likes to see the bad guys get what’s coming to them — and there’s a lot of subjectivity in our feelings toward criminals. It’s easier to feel the loss of a teenage gangster killed in a gunfight with police if you grew up with people just like him, or if you could have been him in another life. On the other hand, there’s no reason to expect any sympathy from the family of his victims…although that has been known to happen.

Perception and Intent

Self defense is just the first layer of the ethical puzzle, describing the conditions under which Alice is allowed to shoot Bob. There’s a difference, however, between the abstract morality of certain outcomes and the ethics of human action, because people are limited by their perceptions and understanding.

If Alice or Bob honestly misunderstands the facts of a situation in such a way that they would not be doing anything wrong if their understanding was correct, we generally do not consider them to have committed a moral error. We judge people’s ethics by their decisions based on their subjective knowledge at the time of the event, not on our own knowledge in hindsight.

This usually enters the lethal force analysis with regard to the question of whether or not someone’s life was actually endangered. When we say Alice can shoot Bob to stop him from killing her, what we really mean is that Alice can shoot Bob if she reasonably believes it is necessary to stop him from killing her. The usual way to express this is that Alice must be in fear for her life.

Perhaps Bob plays a mean joke on Alice by pointing a fake gun at her and screaming “Die! Die! Die!” just to see her frightened reaction. Since Alice isn’t in on the joke, she might reasonably come to the conclusion that Bob intends to kill her, and so she might believe it is necessary to use lethal force to stop Bob’s “attack” and end up shooting him dead.

Had Bob actually been attempting to kill Alice, we might say this was a righteous shooting in self defense. It would have been the right thing to do, and if in the future Carl attacked Alice the same way, we would want her to shoot him as well. However, since Bob wasn’t actually trying to kill Alice, her shooting him was not the right thing to do, and if Carl performs a similar fake attack on Alice, we ideally want her not to shoot him.

Nevertheless, this does not mean that Alice is a bad person who deserves punishment. We can understand why Alice shot Bob, and although with full knowledge of the situation we realize it was the wrong thing to do, we can also realize that with Alice’s limited knowledge, it probably seemed like the right thing to do. On the other hand, if Alice ignores information — limits her own knowledge, either recklessly or intentionally to avoid the duty to take it into account — we may hold that against her.

Note also that it’s not enough for Alice to be afraid. There has to be some connection to reality. Alice’s fear need not be accurate, but it must be reasonable. If, for example, Alice has an irrational fear of young black males and Bob is a young black male, that’s not a license for Alice to shoot Bob.

In general, the subjective nature of Alice’s perception makes the ethics harder to analyze. If Bob breaks into Alice’s home carrying a gun and charges at her while screaming “Die! Die! Die!”, we’d probably all agree that’s a justified shooting. If Bob was actually playing a prank and didn’t even have bullets in the gun, I think we’d all agree that Alice is not the one at fault.

But what if Bob is just a burglar who intends Alice no harm? What if he breaks into Alice’s house in the night, but he brings no gun and makes no threats, and Alice still shoots him? Shooting Bob is not necessary to save Alice’s life, but does it look that way to Alice? Is she required to see a weapon or evidence of intent to harm before she can shoot him? Or do we say that when Bob breaks into Alice’s house in the middle of the night that she can reasonably presume that he intends to harm her and has the means to do so?

The analysis based on reasonable belief also brings into play factors that might influence Alice’s reasoning. Alice might have had previous encounters with Bob that lead her to believe that he’s dangerous, or she might have previously been attacked by strangers in the same location where she encounters Bob, or police might have been warning area residents of a rapist who breaks into homes in the middle of the night, or Alice might have had self-defense training in which she was told that most intruders who break into occupied homes intend serious harm to the occupants.

It’s even possible for situations to occur in which both sides reasonably believes that they’re in a self-defense situation. Imagine that Alice comes home to find the front door ajar. Furthermore, she can hear someone moving around inside. Concerned, she draws her gun and enters. However, what Alice doesn’t realize is that because she lives in a real estate development where all the houses look the same, she has mistakenly entered Bob’s house. Upon seeing hearing Alice enter the house, Bob becomes concerned and draws his own gun to go investigate. When Alice and Bob encounter each other, each reasonably believes they’ve encountered an armed intruder, and both open fire.

Although Alice is clearly the one who made the mistake, and even though the consequences were profound and tragic, it’s not clear that Alice’s error is the moral equivalent of murder. She certainly wasn’t intending to kill an innocent person. With a little more inventiveness, perhaps involving a malicious third party, we could probably come up with scenarios where it’s not at all obvious that either Bob or Alice is to blame.

This is one of the most contentious areas in the ethics of self defense. On the one hand, we don’t want Alice shooting at anyone who makes her uneasy; on the other hand, we don’t want her to wait until she sees the muzzle flash. There’s a lot of distance between those extremes, and sincere and diligent people can nevertheless have very different ideas of what should reasonably cause someone to fear for their life, or of what mistakes are understandable and excusable.

Making things more complicated, we need to be careful not to confuse our analysis of perceptions and our analysis of reality. It’s not inconsistent to believe that (a) Alice was justified in shooting Bob because she was in fear for her life, and (b) Bob was not actually endangering Alice’s life.

To make that more concrete: Thinking that George Zimmerman and Officer Darren Wilson don’t belong in jail is not the same as thinking that Trayvon Martin and Michael Brown deserved to die, or that it’s open season on young black males. It’s true that there are people who think that Martin and/or Brown were thugs who deserved to die, or that young black males are a threat to public safety, but it would be a mistake to assume that everyone who defends Zimmerman and Wilson is in either of those camps.

By all means, if your opponents are actually violent racists, you should call them out on that. But there’s a difference between wanting to see young black kids killed for no reason and believing Zimmerman and Wilson did the right thing. And there’s a difference between believing Zimmerman and Wilson did the right thing and believing that Zimmerman and Wilson did the wrong thing for understandable reasons. Intellectual honesty demands that we recognize the distinctions and take them seriously, and that when evaluating other people’s opinions, we recognize that they may be making different distinctions than we would.

That’s enough for now. In future posts I’ll explore how we learn about lethal force incidents, and why that adds to the confusion.

The Threats Are Real, But the Danger…Not So Much

I play video games pretty regularly, but except for the occasional threat of government censorship, I’m not much interested in the politics of gaming, and I’m certainly not interested in the politics of gaming reviews or of identity-group-based game criticism. Which is why wrote about a game instead of writing about GamerGate.

(Although…is anybody concerned about the under-representation of left-handed people in first person shooters? I don’t think I’ve ever seen a left-handed viewpoint character. Talk about erasing an outgroup from the discourse…)

Fortunately, Ken White wrote a damned good post about #GamerGate that said almost everything I thought about saying, said it better, and said a lot more that’s interesting as well. Ken’s final point is to denounce the threats of violence, and that reminded me of something I’ve been meaning to write about.

From what I’ve read, several women targeted by misogynistic members of the GamerGate crowd have received threats of rape and murder. At least three of them — game designer Zoe Quinn, game designer Brianna Wu, and feminist game critic Anita Sarkeesian — have decided to leave their homes for their own safety. Games journalists Jenn Frank and Mattie Brice have received so many threats that they decided to stop reporting about games. For God’s sake, they’ve even gone after Felicia Day.

This is a sad and pathetic situation on so many levels. Even if everything Zoe Quinn was accused of was true, and she slept with game journalists to get good reviews for her Depression Quest game, I still don’t understand why people are so damned angry and hateful about it. And Anita Sarkeesian’s criticisms of gaming are the same things feminist critics of popular culture have been talking about for decades. Why is it so upsetting this time? Why threaten rape and murder? What is wrong with these people?

Whatever is wrong, it’s been that way for a while, as Sady Doyle points out. I can remember when tech blogger Kathy Sierra was being hounded over little more than being female and successful. It was ugly. And ever since, I’ve suspected that a lot of women on the internet get these kinds of threats, but most of them don’t talk about it much.

All of which brings me to the main point of this post: As a general rule, women in the public eye are not in serious danger from anonymous strangers who make these kinds of threats.

To get an idea of why I believe this, I’d like you to indulge me in a thought experiment: I’d like you to plan a murder. Imagine that you want to kill someone you don’t know very well. Perhaps some minor public figure, such as one of these women, or one of the people harassing them, or a journalist who said something that pissed you off, or an executive at a company that gave you poor service. How would you personally go about doing it? Ask yourself what your very first step would be. What would you do right now to start your murder plot in motion?

You might start by gathering information about your target. Where do they live? Do they have roommates? Where do they work? Do they have a car? Think about what information you need, and ask yourself how you would get it. Some of it is public information, but at some of it could only be found by surveilling your target. You’d have to learn about them without getting caught, and without leaving evidence behind such as witnesses, internet logs, or security videos that would help police identify you.

You might have to learn your target’s daily routine, and then try to figure out when and where would be best for the attack. Do you break into their home? If so, do you have the equipment you’d need? Do you have the training to use it? Do you know if they have an alarm system, a dog, or a gun in the nightstand? If you attack at their place of work, do you know how to get past building security? How to find their office? If you attack them while traveling to and from work, do you know their route? Do you have to intercept their car? Do you have to follow them on public transportation?

How are you going to do the deed? Do you have a weapon? Do you know where to get one? Do you know how to use it? How will you dispose of it afterwards? Are you going to wear a mask to hide your face, or will that attract too much attention? Are you going to dump the body somewhere, or will that mean too much time driving around with a body? Speaking of cars, do you use your own, which is easily traced to you, or do you take the risk of stealing one and then driving around in a stolen car? Do you even know how to steal a car?

Okay, that’s enough. We’re done planning the murder. I just wanted to go through that exercise to make a couple of points, the most important of which is that no part of the murder plan included a Twitter-based terror campaign to scare the target before we attacked. If you’re planning to actually murder someone, what would be the point of scaring them on Twitter? Won’t the murder be scary enough?

The threats are a waste of time, and worse, they risk tipping off the target, attracting the attention of the authorities, and encouraging greater attention to security. The killer who stalks his victim and issues increasingly frightening threats before his final attack is mostly a creation of fiction. In the real world, people who are going to commit rape and murder usually just go ahead and do it. They don’t bother making threats. The corollary is that people making threats probably aren’t actually planning to commit rape and murder.

(There’s a similar problem with vague bomb threats: “There’s a bomb in your building set to go off at noon!” Real bombers want to cause death and destruction, so why would they warn anyone? There are only a couple of plausible scenarios for a warning about a real bomb. One is that someone close to the bomber — possibly a confederate — has developed feelings of remorse. The other is that someone has discovered the bomb plot and opposes it. But in either of those cases, why not explain exactly where the bomb squad can find the bomb and tell them how to disarm it? And maybe say exactly who placed it and where to catch them? There’s almost no credible scenario for sending a vague anonymous warning about a real bomb.)

There are several reasons why people might make threats without following through on them. For one thing, they may simply not be evil enough. It’s one thing to say you want to kill someone, but it’s another thing to mean it. Almost everyone has at one time or another muttered some vague wish to kill someone who pissed them off — their boss, their spouse, someone they’re doing business with — and some of them have even said it out loud to the target of their anger, but almost nobody ever means it enough to actually do it. There’s a huge difference between angry words and real violence.

For some people, the threats are an end unto themselves. They’re a form of entertainment or a means of self-validation. Some folks get their kicks from mountain climbing or surfing, others play video games or enter poker tournaments. These people get off from threatening other people online. They’re not out to physically hurt anyone, they just like upsetting people. They’re trolls, doing what trolls do. Naturally, there are entire web communities built around this concept.

But even if they are angry or crazy enough to really want to rape or kill the women they’re threatening, that doesn’t mean they’re actually capable of doing it. Many of the people who make these threats are too ineffectual to carry them out. They have trouble enough achieving basic life goals, like living on their own, having a girlfriend, or holding down a job. Carrying out a violent attack against a public figure is way beyond anything they are capable of. It’s just another big plan they’re always talking about without doing anything.

As I tried to illustrate with my “let’s-plan-a-murder” thought experiment, attacking a public figure is kind of hard. It likely requires traveling hundreds or thousands of miles to the target’s location, surveillance, gathering supplies, creating the plan of attack, and committing the crime. None of that is easy, and the people making anonymous threats are unlikely to be willing to expend the time and money to actually do it. They also might not have the physical confidence to overpower a healthy young woman, they might not have access to weapons or know how to use them, and they probably lack the interpersonal skills to trick a target into letting them into their home or meeting them somewhere.

Violent attacks are also not without risk to the attacker, who could be injured during the attack or captured by police afterwards and imprisoned. Even people who who are willing to hurt people and capable of doing it might be reluctant to confront such consequences.

I remember after the terrorist attacks on 9/11, the media got some mileage by interviewing young Muslim men in the Middle East who claimed to be planning attacks on the United States. Some of them even carried around photographs of their targets, such as the Sears Tower. Yet those attacks never happened. There’s a big difference between being a terrorist and wanting to be a terrorist.

Posturing is easy. Action is a lot harder. I mean, think about it: Making anonymous threats on the internet is probably the least effective thing you can do that your target would still know you were doing.

I’ve made the claim before that anonymous online threats are unlikely to result in actual attacks, and some people took it the wrong way, so to head off some confusion, here’s what I’m explicitly not saying:

  • I’m not denying the existence of violence against women.
  • I’m not accusing these women of faking the threats. It’s possible that some of them are — people have done it before to garner support — but I’m not talking about fake threats. I’m saying that even real threats against public figures rarely result in real violence.
  • I’m also not talking about any specific woman receiving threats. I don’t know what messages each of them has received, I don’t know their security situation, and I’m not a threat assessment professional. And even if I were, it’s unrealistic to claim there’s no danger at all. I’m just urging a realistic assessment of the threats.
  • I’m not dismissing the danger. This is not a naive position that assumes nothing bad ever happens in the world. I believe my statements about the danger are based on modern thinking about threat assessment.
  • I’m not trying to minimize or whitewash the behavior of the people making the threats. Even if they don’t rape or murder anyone, they’re still using threats of violence to try to intimidate and control their victims. They’re still causing harm, they’re still assholes, and they’re still criminals.
  • I’m not saying threats against women never lead to violence, just that anonymous threats against public figures rarely lead to violence. One of the key predictors of violence is intimacy: The better the victim knows the person issuing the threat, the more likely there will be violence. The most dangerous threats come from someone close to the victim — a spouse, a boyfriend, a coworker, a business partner — someone they know and who knows them.
  • I’m not blaming the women for panicking. They know more about their specific situation than I do, they may have consulted experts, and ultimately, it’s their decision to make. If they’d rather quit their jobs or move out of their homes, I’m not saying they’re wrong to do so. They don’t owe it to anyone to stand fast in the face of threats.

And to be clear, I’m not saying that anonymous threats against public figures never lead to violence, but it takes some special conditions, so it’s much less likely than we might guess at first thought.

Some recent examples of violence against women might seem prove there’s a high level of danger, but on closer examination, I think they prove my point.

In 2011, Arizona Congresswoman Gabrielle Giffords was badly wounded during a brutal mass shooting attack by Jared Lee Loughner. As near as I can tell from reports, he only ever made vaguely threatening statements against public officials, none of them addressed specifically to Giffords, and all made in his own name.

Earlier this year, Elliott Rodger went on a killing spree in Isla Vista, California, killing six people and wounding several others. According to a video he made before the incident, he was motivated by his hatred of women who had rejected him. He’s exactly the sort of person that we might imagine is behind the GamerGate-related threats. But Rodger’s behavior doesn’t fit that model. Three of the people he killed were his male roommates — people he was close to — and the rest of the people he shot at were apparently random strangers. There’s no evidence he ever sent them threats or any other communication. He did create the video and a 100,000-word “manifesto” which he sent to several people, but he sent those out under his own name, and not to any of the victims.

As I started writing this, word began to spread of the a murder of a woman in which the killer had posted pictures of the body on 4chan — a website with a lot of GamerGate-related activity. But as it turns out, the killer was her live-in boyfriend, not some stranger from the internet. As is often the case, it’s intimacy that makes for the most serious danger.

Once you start thinking in terms of the difference between threat behavior and attack behavior, you can sometimes see signs of it in the threats themselves. Consider this pair of tweets threatening Brianna Wu:

“Your mutilated corpse will be on the front page of Jezebel tomorrow and there isn’t jack shit you can do about it.”

“If you have any kids, they’re going to die too.”

So this person hasn’t even learned enough about his target to know if she’s got children, but he’s totally going to kill her tomorrow. Right…

There was another one I saw (although I can’t find it now) where the person making the threat was bragging about all the frightening ways he could attack his target, and he said something like “I have friends who can get me any weapon I want — assault rifles, shotguns, pistols, hunting knives, machetes –” In other words, he’s a badass who could hurt her with all kinds of weapons…but he doesn’t actually own any weapons and would have to get them from these people he supposedly knows. Right…

Some of these threatening messages are especially upsetting because they include details that are vivid, obscene, and horrifying — specific objects used on specific body parts in specific acts of violation and bloodshed — sometimes framed in terms of how friends or family members will discover the body. Our natural reaction is to recoil, and it’s easy to think that anyone with such detailed obsessions must be deranged and dangerous.

I think that’s half right. They may be deranged, but I don’t think they’re very dangerous. As I’ve said, dangerous people tend not to make anonymous threats. With that in mind, I think the gruesome details are a telltale sign of someone who knows they’re never going to carry out an attack. The threatening messages have to be as frightening as possible, because they need to do all the work. There’s nothing else coming.

Obviously, I can’t know any of this with absolute certainty, and I don’t claim to. I certainly can’t say anything with certainty about any particular woman who has received threats, nor can I be sure of much about any particular person making threats.

I want to tread carefully here because I don’t want to encourage a false sense of security. There are ways this could turn out to be very dangerous. There are ways that people who make threats could be pushed into violent acts, and even if the people making threats never attack anyone, their threats may create an atmosphere which encourages a more violent person to attack. Or parts of GamerGate could develop into a terrorism campaign in which acts of violence are used to make the threats more credible. I haven’t seen any signs of this I can point to, but if it’s an organized group, imagine something like the Ku Klux Klan. If it’s just one guy, think Unabomber.

That said, for all the reasons I’ve explained, I think it’s unlikely that these anonymous threats against women in the gaming community will result in actual violence. It’s important to keep in mind that we’re all still talking about the GamerGate threats, not the GamerGate attacks. So far, none of the women receiving threats has been physically assaulted.

That’s not to say that the threats themselves aren’t disturbing. It’s painful to read accounts by women who’ve received frightening threats and decided to move out of their own homes because they fear for their safety and the safety of their families. It angers me how much trouble the people making threats have caused with so little effort.

I mostly wrote this post because I’m fascinated by the subject of threat assessment in general, by the division between those who commit violent acts and those who threaten violent acts, and by some of the the counter-intuitive deductions we can make about people who make anonymous threats against public figures.

However, I also wrote this post in the hope that, in some small way, it will undermine the effectiveness of the fear campaign against these women and their allies. At the risk of mansplaining, if some women receiving GamerGate threats stumbles across this post, I’m not saying you have no reason to be afraid, but you almost certainly shouldn’t be as afraid as they want you to be.

Obama and Running Away

Allen Clifton at Forward Progressives has a post complaining about Democratic candidates trying to run away from President Obama. He then goes on to list some of Obama’s accomplishments:

The same president who has presided over:

The creation of over 10 million jobs in less than 6 years.

Obama inherited an economic recession. Recessions end. Of course it got better. It would have gotten better under President McCain too. The U.S. economy has some pretty sound fundamentals. It recovers from slowdowns.

The finding, and killing, of Osama bin Ladin.

A fair, although minor, accomplishment.

A huge drop in the number of uninsured Americans.

Fair enough, I guess, although I’m not sure that reducing the number of uninsured Americans by requiring Americans to buy health insurance or face a penalty is something to brag about. The roll-out of the exchanges did not go so well, and it will take a while for the full effects of the Affordable Care Act to become apparent. It won’t help to have health insurance if doctors and hospitals start going out of business.

Record stock levels.

Again, the stock market recovered from the recession, as it always does. Sarah Palin could have been sitting in the oval office for the last six years and the stock market would have still rebounded.

The saving of the American auto industry.

More like the saving of the inefficient Detroit-based part of the American auto industry at a cost of billions to taxpayers. It’s not that hard to save a failing business with a massive infusion of someone else’s cash. And it’s not clear that it’s necessary: If Detroit automakers had gone under, Americans would have still needed cars, and some other part of the auto industry would have expanded to supply them.

An unemployment rate that’s now below 6%.

Yet again, this was the inevitable, but unusually slow, recovery from the recession. Obama’s Portuguese Water Dog Bo could have been sitting in the oval office and unemployment would have improved.

The ending of discrimination against homosexuals in our military.

Seriously, this was a good thing. Well done, President Obama. Nobody should be running from this. Which brings us to the final item:

Same-sex marriage being on the verge of national legalization in the very near future.

What a strange thing to include on the list. The expansion of legalized same-sex marriage in the United States happened despite the opposition of President Obama. Obama was opposed to same-sex marriage for most of his political career, deciding to support it only recently.

Now let’s look at a few things Clifton left out of his list of accomplishments of the Obama presidency:

  • Despite campaign promises of greater transparency, the Obama administration has reduced cooperation with the press and stepped up prosecutions of leakers.
  • Used the NSA to spy on the press…and everyone else.
  • Refused to investigate torture under the Bush administration.
  • Despite campaign promises, has not closed Gitmo.
  • Despite campaign promises to rein in executive power, the Obama administration has actually expanded it.
  • Ordered the execution by drone strike of American citizens without due process.
  • Allowed the DEA to step up its war on effective treatment for chronic pain sufferers.
  • Continued federal raids on state-approved marijuana dispensaries.
  • Led us back into war in the middle east.

And that’s just off the top of my head.

Frankly, I don’t know how many of those items are enough to keep Democrats away — I don’t hear too many of them complaining about these issues — but President Obama has pretty much run away from just about everything that I liked about Candidate Obama.

The Unappreciated Virtues of Low Prices

Former Joe Biden chief economist Jared Bernstein has a piece up at PostEverything extolling the virtues of the $20/hour wage rate paid to McDonald’s employees — and other fast food workers — in Denmark.

The base pay for a fast-food worker in Denmark is $20, and the pay package includes considerable non-wage benefits, including five weeks’ paid vacation, paid maternity and paternity leave and a pension plan. What’s the U.S. fast-food pay package? Um…not so much. The average hourly wage is $8.90, with few benefits, and the base wage is closer to $8.

Now, this huge difference poses a huge problem for those who want to argue that such compensation levels are set solely by the market fundamentals of supply, demand and productivity.

I don’t know too many people who argue that that compensation levels are set solely by the market, but lots of free market advocates argue that compensation levels should be set solely by the market.

Surely those factors play a role, but the difference in pay is too large to be explained by market factors alone. Denmark and the United States are different countries serving different markets, but a burger is a burger — and we’re not in different universes.

Clearly, Bernstein doesn’t know very much about burgers if he thinks they’re all like Big Macs, but I’ll grant that McDonald’s burgers are probably mostly the same everywhere. But that doesn’t mean that McDonald’s restaurants are operated the same everywhere. I’m guessing that a McDonald’s with those labor costs operates a bit differently than the ones I’m used to.

An economy is a complex system, and trying to push it around often produces unintended consequences. Bernstein implies that the higher pay for McDonald’s workers comes at the cost of making restaurants less profitable. If that’s the case, then we would expect that the higher wages would force McDonald’s to cherry-pick its best locations for restaurants, and drop all the less profitable locations, or never build anything there in the first place.

And indeed that seems to be the case. In proportion to its population, Denmark has about 1/3 as many McDonald’s as the U.S. Now I’m not saying that Denmark could triple the number of jobs in its fast food sector by allowing lower wages — there are undoubtedly other factors explaining the relative lack of McDonald’s — but the high wages probably aren’t helping, and if they’re widespread in other sectors of the economy, they may be contributing to the high cost of living in Denmark.

Denmark does have a much more balanced distribution of income according to World Bank estimates, but their overall income is lower, with the average person in Denmark earning a GDP per capita that is about 80% of what U.S. residents make. Denmark also currently has an extra point of unemployment.

Naturally, the higher labor rates raise the prices on a McDonald’s menu:

Of course, burgers cost more in Denmark. A Big Mac is $5.60 there, compared to $4.80 here. But that price difference is dwarfed by the wage difference. Not that she’d necessarily want to, but a Danish worker can buy almost twice as many Big Mac’s on her wage than her American counterpart.

A worker at McDonald’s could buy almost twice as many Big Macs on her wage, but every other person in Denmark who is not a McDonald’s worker can only buy about 85% as many burgers as their American counterparts because of the higher price. The burger price increase may not be as steep as the wage increase, but it affects many times more people.

Here in the United States, we’re all about lower prices. What we often fail to do is connect lower prices to lower wages. In part, that’s the result of a national economic model that puts the consumer at the center of the action.

That’s a little mixed up. Prices and wages are connected, but not just in the way Bernstein suggests. Let me see if I can explain what I mean.

To keep it simple, let’s suppose you work for one hour a day for $10 per hour, and you spend all $10 every day on food at McDonald’s. Day in, day out, that’s your routine: Work for an hour, buy food to stay alive.

Then one day, you negotiate with your boss for a 10% raise. Now you make your daily trip to McDonald’s with $11 in your pocket. You still spend $10 on a burger, fries, and a drink, but you have $1 left over to spend on something else — maybe a mini-desert at McDonald’s, or something to read, or maybe you save up and buy an article of clothing. Whatever you buy with that extra dollar is the tangible manifestation of your increased income.

But suppose that when you get to McDonald’s, you’re shocked to discover that prices have gone up 10%, so your regular meal now costs $11. You can still afford to eat, but don’t have money left over for anything else. Once again, you’re working an hour a day and spending all your income on the same food. Your quality of life has not changed. Your income has gone up in nominal terms, but in reality nothing has changed because you are not able to consume any more than before.

Finally, let’s back up and suppose your negotiation with your boss failed, and you still earn $10 an hour. Feeling a little dejected, you stroll into McDonald’s only to receive a pleasant surprise: McDonald’s has cut its prices by 10%. Your meal now only costs $9, meaning you have $1 left over to spend on something else, just as you would have if you had received a 10% raise. By lowering its prices, McDonald’s has effectively given you a small raise.

The true measurement of your income is not the money that you’re paid, but the goods and services you can consume. You are better off if your employer pays you more money per hour of work, but you are also better off if the production of things you buy becomes more efficient, so you can buy more stuff for the same amount of money. The money itself is only the medium of exchange that you use to convert your hard work producing goods and services into an improved quality of life by consuming goods and services. In fact, we can take the money out of the equation entirely and conclude that your quality of life is directly related to the amount of goods you are able to consume for every hour of work you do.

If we expand our view to encompass the whole economy, it’s pretty clear that we can only consume as much as we produce — because those consumer goods and services don’t materialize out of nowhere. (I’m ignoring fluctuations due to imports, exports, and warehousing for the sake of simplicity.) So the more we can produce in an hour, the more we have available to consume. Or to put it another way, the less labor it takes to make something, the more of that thing we can produce with our existing labor force, and the more we have to consume.

Labor productivity has increased dramatically in the developed world, and it has made us rich. Historically, keeping humanity fed used to require the labor of anywhere from 50 to 80 percent of the population, including women and children. But over the past few hundred years we’ve figured out much more efficient forms of agriculture, and the percentage of agriculture workers in developed countries like the United States has fallen to less than 2 percent.

All those people who used to labor at farming are now working to produce everything else we have — sturdy housing, reliable transportation, electric power, advanced medicine, colorful clothing, instant communications, stimulating entertainment — all the advantages of our modern civilization. We have so much more than our ancestors because it’s all so much cheaper to produce.

In denouncing the pursuit of low prices, Berstein is attacking the source of our prosperity.

Back to the Borderlands

I guess I’ve been too busy to blog. My day job has hit a busy period, and it’s been using up most of my mental energy. And when I do have time to goof off, I’ve been filling it by playing Borderlands: The Pre-Sequel.

The original Borderlands was kind of a half-assed project build around a neat system of randomly generated weapons and power-ups. It was fun to play, but a little rough around the edges and not well focused. For example, every character gets a special action skill, but in a game dominated by guns, two of the characters had abilities — Brick’s hand-to-hand Berserker rage and Lilith’s secretive Siren phase walk — that discouraged them from shooting anything. And the ending of the main campaign plot was infamously disappointing.

Still, Borderlands was a surprise success, and when Borderlands 2 came out, it was Borderlands done right. It introduced four new characters who were pretty much one-for-one replacements for the characters from the first game, but with better and more varied skills. The Berserker became a Gunzerker and the new Siren’s ability made shooting more effective rather than discouraging it. The plot was unified around fighting a tyrant named Handsome Jack, and the ending paid off.

In terms of hours played, Borderlands 2 is one of my all-time favorite games, but only in co-op play with someone else. Personally, I find the single-player mode less interesting. That’s because I don’t really like open-world games very much. Figuring out where to go and what to do next, and what the right order is for the side missions, and what items I’ll want to get before the next mission…that just isn’t fun for me. I spend my whole work day solving complicated problems, so when I want to escape in a video game, I want something simple and linear. Kill the bad guys, get the loot, move on to the next battle.

My sometimes co-blogger Ken likes all that complexity, so when I play Borderlands 2 with him, I let him lead the way, and I just follow along and shoot anything that bothers us. He gets the complex mission-oriented, open world style game he wants, and I get a linear first-person shooter I don’t have to think too hard about.

We’re about halfway through Borderlands: The Pre-Sequel and I’m enjoying it. As every reviewer has tiresomely pointed out, it’s not quite the amazing game that Borderlands 2 was, but that’s praising it with faint damnation. In some ways, it’s not much more than a really big content expansion pack for Borderlands 2, but that’s not exactly a bad thing. The Borderlands 2 DLC’s were a lot of fun.

The main difference is that B1 and B2 both took place on the planet Pandora, but Borderlands: The Pre-Sequel takes place on Pandora’s moon, Elpis, which has lower gravity and no air. So you can execute giant floating leaps all over the place, and then suddenly plunge downward to stomp on your enemies. You do have to watch your oxygen supply whenever you’re outside or you’ll run out, but you don’t die right away, and there’s oxygen everywhere, so it’s not too annoying.

There are also different types of weapons, different equipment you can carry to buff your skills, different vehicles, and lots of different bad guys. But basically, it’s just Borderlands in Space. The game designers are well aware of this, even relabeling the ubiquitous “Guns” vending machines “Guns In Space.”

And I’m okay with that.

This plot takes place between Borderlands and Borderlands 2, and we’re working for Handsome Jack, who’s acting like he’s a good guy. But I’ve played Borderlands 2, so I know how he turns out. This is all going to end in tears. And bullets.

(And fire, electrical arcs, and explosions. Also some acid.)

Now excuse me, but I’ve got to exterminate some alien bad guys. We’ve got a moon to save.

The First Rule of Everyone

Much has been written about the so-called First Rule of Law Enforcement, “go home alive.” But this line by ExCop-LawStudent gets it exactly right:

I believe in the First Rule of Law Enforcement, but I also believe that our citizens have that same right to go home at the end of their day.

That is in agreement with the classical liberal concept of human rights: Your rights are limited only by the fact that everyone else is entitled to exactly the same rights. If someone infringes your rights (or someone else’s), then they are exceeding their rights, and you can act to stop them. But if you act against someone who is not infringing on someone else’s rights, then you are the one violating rights.

Everyone has the right to live through the day.

What If We Eliminated Plea Bargaining?

Scott Greenfield is complaining about people who propose simplistic solutions to the ills that infest the criminal justice system. This time it’s the Economist, and their solution is the ever-popular one of eliminating the problems of plea bargaining by eliminating plea bargaining. Scott’s not happy with that for the usual reason criminal defense lawyers aren’t happy with eliminating plea bargains:

Consider what life would look like without plea bargaining.  Every defendant would then have to be tried to be convicted, as there would be no incentive to cop out.  Every guilty defendant would then be subject to full freight sentencing, the price that no one in power really expects anyone to pay, which is what allows them to set the MSRP for crime in the stratosphere, tell the groundling during stump speeches about how they’ve saved them from rapists and give headline writers silly numbers for clickbait.

I have no disagreement with this. Criminal defendants would get hammered without the plea bargaining escape hatch. You would not want to be prosecuted for a crime after plea bargaining was eliminated. Nevertheless, Scott misses a point that may be worth discussing (or maybe not, but that never stops me) when he writes this:

The government would need 100 times the existing number of courtrooms, judges, clerks, court officers, prosecutors and jury pools. And public defenders would get stretched a wee bit thinner.  Even so, kids would sit in jail for years awaiting trial, turning that one year potential sentencing into three, until it was their turn in the well.

The government is not going it get what it wants. Increasing the case volume of the justice system 100-fold — or 20-fold if you use the 95% plea figure — is never going to happen. The government can’t afford the cost of holding trials for everyone they charge, and it sure as hell can’t afford the cost of operating prisons for all those people. (Instead of having 1% of our adult population in prison, we’d probably have to hire 1% of our population as guards for our vast prison empire.) If we somehow outlawed plea bargaining tomorrow, there’s no way the government at any level could afford to try and imprison everyone that gets arrested.

Advocates of eliminating plea bargains are counting on this. Without a larger budget, prosecutors would have to make some hard choices about who to prosecute and who to let walk. They’d have to focus their efforts on the people they most want to put in prison and let everyone else go. It seems likely to me that the net effect would be a reduction in aggregate prison time.

On the other hand, it would be devastating for Scott’s clients. The ones found guilty would be pounded into the ground by draconian sentences, much higher than the legislature intended, and these long sentences would be concentrated on a small group of people, which is arguably unfair. (Speculation about this group’s age, race, and gender characteristics are left as an exercise for the reader.)

The other big problem with eliminating plea bargaining is that lots of crimes would go unpunished. While it seems unlikely that every single one of the 95% who currently take plea bargains are guilty, it is probably even less likely that every single one of them is innocent. Many of them would go on to commit more crimes against the public. Eventually, they would be prosecuted and imprisoned, but in the meantime they could wreak havoc on the innocent. It seems likely that the result would be a lot more crime.

Finally, as a libertarian, I’d like to think that if the justice system could only prosecute a small fraction of the crimes it does today, it would abandon enforcement against consensual crimes and focus on crimes that present a real danger to the public. Somehow I doubt that would be the case.

The plea bargaining system could use some reform, but eliminating plea bargains altogether is an extreme measure that would imprison a lot of people for a very long time while allowing crime to run rampant. That doesn’t sound like it would be good for anybody.

Greg Laden Illustrates the Case For a Carbon Tax

Science blogger Greg Laden is having trouble figuring out whether or not to install a solar electric power system in his home.

I want to put a solar panel on my roof so that I am releasing less greenhouse gas into the environment. But then I hear that manufacturing solar panels causes the release of greenhouse gasses, so I have to subtract that from the good I think I’m doing. But then I realize that the people who are making the solar panels have to change their method so they release less greenhouse gas into the environment.

We hear this argument all the time (for example, here). You think you are doing something “green” but it really isn’t green because yadayadayada.

Laden has decided he isn’t real impressed by that argument. For one thing, he just doesn’t trust some of the sources for those numbers. I wouldn’t either. With billions of dollars in play and ideological positions to defend, it’s hard to find unbiased information on climate and energy issues.

Laden lists three more reasons for disdaining that argument, but they are all variations of the same thing:

So what? Nobody tells me I have to make a rational decision about buying the 72 inch wide TV to replace my 64 inch wide TV, but suddenly I’m a bad person if I don’t do a detailed Carbon-based cost benefit analysis when I want to do something EVEN COOLER than having a bigger TV, like putting a freakin’ cool solar panel on my roof?

This is an excellent reason for buying solar power. I think it’s cool too, and I’ll definitely look into it when we move out of our condo into a house where we can do stuff like that. In fact, according to a recent Lazard report, solar photovoltaic electricity generation is starting to become competitive with some of the more expensive conventional electricity generation methods. I expect the next ten years will see a lot of solar powered homes and a lot more solar generation from electrical utilities.

Laden thinks this will also apply to electric cars:

Driving an electric car in a region where more coal is used to make electricity, would have to be MUCH less efficient than not driving the electric car (in terms of carbon release) to make me think twice about it. I’ll drive my electric car and at the same time we’ll watch the electricity companies make more and more of their electricity from wind and solar, and they will have a bigger market to sell that in because we are locally replacing gas with electricity.

Laden has clearly thought about this a lot, at least in terms of the carbon footprint produced by his next car. But he has apparently given very little thought to many other aspects of his new electric car.

For example, how much valuable steel is it going to consume? We use steel in a lot of different ways in this country — for everything from wall fasteners to medical devices — so how do we know that providing Laden with a car to drive is the best use of that steel? It would be unfortunate if some poor diseased person died because the medical device that would have saved their life was never built because the steel was used to make Laden’s car.

Or what about the people who spent collectively hundreds of hours on the assembly line building the car? Perhaps they could have been doing something more important, like teaching children how to read or working to reduce the spread of infections in hospitals. Or maybe they would rather have had that extra time to take a class at a local college or stay at home with their children.

And should we even have that assembly line? Maybe that factory could be put to better use making dishwashers or big screen TVs. Maybe the land the factory is on would be better used as a Walmart or as apartment buildings for people who work nearby.

For that matter, once the car is built, who’s to say that Greg Laden is the best person it could go to? Maybe there’s a father of three who needs it to get to work, or a single mom who needs to drive to night classes so she can get her nursing degree. How do we know that Laden is the right person for the car?

My guess is that Greg Laden has spent very little time thinking about any of these issues, and rightly so. The answer to any one of these questions would be difficult to find. But fortunately the answer to all of these questions turns out to be quite simple:

Of course, I will need the electric car to get cheaper before I can get one…

There you go. Every question I raised involves something that is traded on the (more or less) free market. The steel foundries sell their output to the highest bidders, and the buyers — car makers, wall fastener manufactures, medical device suppliers — each bid on as much steel as they can profitably use. The laborers can choose to work for a car maker, a school, or a hospital, each of whom will bid on their labor according to how valuable it would be for them.

The same calculations apply to the factory owner and the land developer. They will make their resources available to the buyer offering the highest price, and the buyer that can offer the highest price is the buyer that can do the most with those resources. And when the electric car arrives in the dealer’s showroom, they will try to sell it at the highest price they can, to the person willing to pay the most for it.

In this way, the pricing system of the free market is used to coordinate the decisions of thousands of people all over the world to allocate their resources and time to produce the goods and services that will be valuable to the final consumers. And what it all comes down to is that when the car is sitting in the showroom, the sticker price represents everything Greg Laden needs to know about all the decisions used to produce it all over the world. And he took a look at the sticker and thought, “Eh, not today.” Decision made.

However, there’s at least one important resource that is not included in the price of the car: Its impact on global warming. The factories and steel foundries consume energy and dump greenhouse gases into the atmosphere, raising the planet’s temperature in a way that will harm other people. Laden’s car would contribute a very small amount of global warming and does an almost infinitesimally small amount of harm to Laden himself, but when you multiply out that harm by the billions of people living on the planet, the amount is probably significantly more than zero, which is the amount global warming currently adds to the sticker price.

That’s a problem, because the cost of the car’s contribution to global warming is every bit as real as the cost of the car’s steel or the cost of the labor that goes into assembling the car. But since nobody involved in making the car has to pay that cost, the final sticker price of the car understates the true cost of manufacturing the car. So people like Greg Laden may be tempted into buying the electric car because the sticker price is less than the true cost. Of course the same thing applies to any other car Laden might buy, and more importantly, it applies to the energy that Laden’s car consumes when he drives it, whether he’s charging an electric car or burning gasoline in a sports car.

The basic problem is that the Earth’s capacity to absorb greenhouse gases is not traded in the market. It is available free to anyone who wants to use it: All they have to do is release the gases into the air. The price of releasing gases is effectively zero. But the cost of the damage they do to the climate is significant. The fact that people can do damage without paying for it is the source of all of our climate problems.

One especially attractive solution to this problem is to use taxation to put a price on releasing greenhouse gases. This is usually called a carbon tax, after a principle element in greenhouse gases. The idea is to set the tax rate for releasing a ton of carbon as close as we can get to an economic estimate of the damage done to the climate by releasing the carbon. This tax will be applied to all sources of energy — coal, oil, gas, nuclear, solar, wind — according to the amount of carbon released (lots for coal, zilch for solar). Thus the price at the electric meter or the gas pump will include the cost of climate damage.

That cost will cascade through all the productive processes in the economy. Laden will no longer have to worry about the carbon released to build his solar cells or his electric car, because that price will have been incorporated into the cost of the manufacturing process. Climate-damaging energy consumption will raise the costs of the product. And when Laden walks into the electric car dealership, the cost of the car will have gone up enough to include climate damage. But the cost of operating a gasoline-powered car will also have gone up due to the carbon tax, so Laden may find that gasoline cars are no longer as cost effective, which might make an electric car worth the price after all.

Or maybe not. But the point is that with carbon taxes (or a number of similar ideas) we can be climate conscious without researching the total carbon footprint of everything we buy. All we have to do is compare prices.

A Monstrous New Constitution

Someone at @Popehat (no idea which one) pointed out that Andrew Burstein at Salon is calling for a new constitutional convention. I’m generally against the idea, because although I can think of a few things I’d like to change, I’d be worried that we’d lose way too many freedoms if we rewrote the Constitution in this fearful day and age. Burstein’s article is an excellent example of what I’m worried about.

To start with, I’ve got to wonder if the author has ever read the Constitution or thought about what the Constitution is for, because he really takes the discussion down into the weeds. A few examples:

“Bring the best teachers to the worst schools, and pay a hefty premium to those teachers. Make a commitment to fixing these schools first. Let them shine on the outside, as a site for community pride. Give them great equipment and smaller classes. Make the learning environment of the poor superior. Take pride in actual democratic commitment. […] While we’re at it, unless they can be seriously monitored, and we mean seriously, let’s move away from the concept of for-profit charter schools, for-profit universities and for-profit prisons. They have already proven themselves unusually subject to private greed and corruption.”

“Start teaching foreign languages in first or second grade.”

“SAT and GRE scores do not measure imagination. Also, reinforce what teachers do by adding counselors and school psychologists to our school systems.”

“Protect Social Security by increasing the Social Security tax rate of those who earn over a certain amount (say, $300,000) in a given year. Close tax loopholes that continue to protect industries that otherwise feel no compulsion to collaborate with others for social betterment: they should not be bullied, just equitably taxed.”

“Instead of rewarding oil and coal interests with government subsidies, accord them the same treatment government has given to Big Tobacco for a whole generation, which has dramatically reduced the percentage of Americans who smoke. Just as no one objects to highway signs that read “Buckle Up,” would it hurt to see warning labels at the gas pump?”

I realize that Andrew Burstein is a college professor, so education must undoubtedly loom large as an issue, but what the hell is he doing talking about SAT and GRE scores in the Constitution? The whole article is really just an exercise in “If I ruled the world…”

That’s not to say Burstein wouldn’t make some Constitution-level changes if he ruled the world. Among those I was able to identify are

  1. gutting free speech
  2. slavery

Let’s take that second one first. He doesn’t want to bring back race-based chattel slavery (so…good for him), but he does want to force young people to work against their will:

Our 18-year-olds are hyperactive online but, for the most part, socially immature. They learn how to party in college, while generally failing to complete reading assignments. The new Constitution would institute a two-year national service commitment, allowing students to obtain college admission at the end of high school–deferred acceptance. They would have the security of a spot waiting for them in college, but would in the meantime take a deliberate part in expansive national service programs.

I don’t know what I hate more, the fact that he wants compulsory national service, or the fact his only justification is that college students are immature and party too much. Because that’s not a reason to steal two years of their lives to work on projects like this:

A math whiz from Vermont can teach high school kids in Zuni, New Mexico. A senior who loves environmental history might work for the Park Service or on an experimental farm. For some, it will be the armed forces. Develop pride, develop useful skills. Energize young citizens–remember, they can vote at 18. Get businesses involved, partnering with government. Teach real-life communication skills, with a dose of empathy. Don’t coddle, but compensate the young men and women for their service. Even those who don’t intend to go to college will profit from such an introduction to a varied, more interesting life.

I have no objection to getting people to teach math or work on an experimental farm, although I’m pretty sure we could get them to do so freely if we just paid them enough. And what exactly will be the process for matching people to their national service jobs? I wonder if Burstein is picturing some wise and kindly government expert poring over Johnny’s class records and carefully picking out a job that will be just right for him. Because that’s the kind of subtle personalized service we all expect from government bureaucrats, right?

I also can’t help wondering about those poor inner-city kids — minorities, most likely — who are stuck in crappy schools and who therefore never get a chance to be math wizards or environmental history geeks. I suppose there’s always the armed forces — which will no doubt be super pleasant to serve in once nobody has a choice — but what about those who don’t qualify? I notice Burstein mentions getting businesses involved. What’s he got in mind? Coal mining? Garment work? Commercial fishing? Or perhaps some nice farming conglomerate could snap up the cheap labor for harvest season. Is picking cotton still labor intensive?

(I suppose that if I had to teach a bunch of snotty college students, I’d fantasize about sending them all off to a couple of years of conscript labor too. On the other hand, I’ll bet Burstein’s teachers felt the same way about him, but a quick glance at his biography doesn’t indicate any military service or the Peace Corps or anything like that. Just fifteen years on Wall Street followed by a job in academia. Perhaps he feels that his university teaching is service enough, unlike the rest of us with our less-exalted jobs.)

As for gutting free speech, that’s because Burstein is really pissed off about the Citizens United ruling:

This is the thing. We all know the solution to our sorest problem. Let’s spell out what everyone’s saying, but voters, en masse, have failed to press for hard enough. It’s all the friggin’ campaign contributions. No more fundraising. Period.

[…]

Use tax dollars exclusively to fund national political campaigns. As students of history, the framers of our Constitution understood the classical meaning of the terms “republic” and “democracy.” Individually and collectively, they would have had a single word for Citizens United: CORRUPTION. Institutionalized corruption. Despite its contrived explanation, the 2010 Supreme Court decision is not about free speech; all it endorses is the thug’s motto: “Money talks.”

(Impressive use of ALL CAPS, dude. You almost had me convinced! Next time, try adding exclamation marks!!!)

Does he even know what Citizens United was about? A group of people operating a non-profit corporation made a documentary that was critical of a candidate for public office and the Federal Election Commission got a court to order them not to show it on television or even to advertise it, basically on the grounds that the expense of showing it was equivalent to to donating money to the candidate’s opponents. The Supreme Court ruled that prohibiting them from showing it violated their free speech rights, implicitly concluding that people don’t lose that right just because they happen to be organized as a corporation.

I honestly have no clue why Burstein says “money talks” is the “thug’s motto.” Thugs don’t talk to you, they hurt you. Yet Burstein apparently thinks that it’s evil for corporations to spend money to talk to people. Because that’s all that he and everyone else are upset about: Corporations talking to people.

(I guess he could be arguing that by spending money on behalf of a politician’s election campaign, corporations are essentially bribing politicians, but I have no clue what bribery has to do with thuggery either.)

Remove money from politics and ideas flourish. One hundred percent public funding, and a designated campaign season extending months, not years. It can be done, people. They don’t know it now, but even the politician class will be glad for it. Do you think they live for the Iowa caucuses? Oblige them to spend more time studying and legislating and less time posturing.

You bet your ass the politician class will be happy for it. Challengers and critics won’t be pointing out their faults and criticizing their policies if the incumbent politicians withhold funding. And not only does Burstein want to prevent people from talking about politics immediately before an election (as the Bipartisan Campaign Reform Act did before Citizens United invalidated it), he also wants to prohibit people from talking about politics at any other time as well.

And unlike the corporate “thugs” he’s so concerned about, the thugs silencing free speech in the name of campaign finance laws won’t just talk to people: They’ll send men with guns to lock them in cages and take all their stuff.

Lest you think I’m making too much of his opposition to Citizens United, he also wants to suppress other kinds of free speech as well:

Make those crass [oil company] ads go away–take the one where the caring female executive of BP Alaska boasts of how the insufficiently regulated corporation responsible for the Deepwater Horizon disaster loves people and creates jobs and works for America. You shouldn’t be able to put a compassionate face on corporate greed. Let’s get priorities straight: Instead of permitting them to twist facts, make polluters pay for TV ads that aggressively promote a clean-energy economy.

[…]

And is there some way to free the airwaves from the pestilential noise generated by those ideologues who shout ignorantly about getting government off their backs?

Yeah, won’t those guys feel stupid for having whined about something as minor as Obamacare when the new government starts taking their children away on their 18th birthday. That will teach them.

I gotta say, there’s more than just a tinge of fascism in all this.

What promise lies in the business of getting ahead at all costs? Or in the unmitigated voyeurism prompted by a mass culture daily saturated with news of mass shootings and manufactured celebrities’ mostly bare bodies? The bizarre and banal loom before our eyes and almost appear to outweigh what matters. […] We should think large.

You know who else thought large? Hitler.

Yeah, I went there. Sorry. The “You know who else…?” meme is just a joke, but this “national greatness” bullshit is not just a right-wing obsession anymore, and it pisses me off. I have grown to despise would-be leaders who belittle the concerns and culture of ordinary people while trying to enlist us in whatever bullshit they believe is more important than our petty selfish desire to enjoy our lives.

Clearly, Burstein is not a genocidal monster. But he does want to enslave millions, and he wants to silence and imprison those who speak out without approval. That makes him some kind of monster.

To contend with those who have been conditioned to fear “big government,” here’s the winning response: Let us profit from good government ideas once they are put into practice. Government performed a masterstroke at the end of World War II with the Servicemen’s Readjustment Act of 1944–you know it as the GI Bill–enabling millions of veterans to go to college and better themselves. It’s proof that government can make a positive difference in citizens’ lives.

Perhaps. But while you’re talking about the 1940s, let’s not overlook the 60 million people who never had a chance to better themselves because they died in World War II. That too is a difference made by government.

The Wrong Terminator

So there’s another Terminator film in the works, scheduled for next summer. I want it to be awesome, but I’m not expecting much. From what I gather, the impetus to make the film was that the company that made the last one went belly up and somebody ended up with the rights and figured they’d better do something with them, and Arnold’s available again, so what the hell, let’s try to squeeze out another film…

Besides, they’ve got the wrong person playing the Terminator. It’s true that Arnold Schwarzenegger created the role, but he doesn’t own it. In my mind, the role belongs to the one person who’s played a Terminator for much more screen time than Arnold ever did:

Summer Glau played Cameron the Terminator for 33 episodes of Terminator: The Sarah Connor Chronicles, which took place after the events of the second movie and which did more intelligent things with the world of John Connor and Skynet than than either of the last two movies. Or probably the next one.

Two Cheers for the Secret Service [Updated]

Am I the only one who thought the U.S. Secret Service did a pretty good job of handling the guy who jumped the fence and ran for the front door?

I’m especially appalled at the suggestion that snipers should have shot him after he jumped the fence. It’s reported that the only weapon on him was a small folding knife, so if the White House door had been locked, he would have just been a guy with a tiny knife running around outside a building. I think the secret service did a great job of stopping him without hurting him.

Look, keeping the President safe is easy. Just lock him in a bunker for four years, or maybe move him in secret between several different bunkers. Never let him make an appearance, never tell anyone where he is. If safety is the only thing that’s important, that would do the trick.

But that’s not the kind of government we have. Our leaders can’t treat U.S. citizens as an enemy to be contained and subjugated, and so our leaders go out in public and the White House looks like a comfortable southern mansion with a nice fence around it.

I mean, look at that fence. When you build a fence like that, you expect people to climb over it. They could have gone with something more secure — like a prison yard wall — but they didn’t, because that wouldn’t look much like a democracy, and so from time to time, people will jump the fence. That kind of vulnerability is part of the tradeoff we make to have an elected President instead of a President-for-life.

As it happens, Gonzalez turns out to be an Iraq war veteran with 15 years in the military. He apparently had some mental problems which might or might not be service-related. Neighbors report that he was paranoid about people breaking into his house. Frankly, I wouldn’t be surprised if it turns out Gonzalez jumped the fence because he wanted to warn the President about some imagined peril.

But whatever his thinking, it would have been a sad thing to shoot him dead on the President’s front lawn.

Update: It turns out that Gonzalez made it much further into the White House than had been previously reported, according to Washington Post journalist Carol D. Leonnig:

An alarm box near the front entrance of the White House designed to alert guards to an intruder had been muted at what officers believed was a request of the usher’s office, said a Secret Service official who spoke on the condition of anonymity.

The female officer posted inside the front door appeared to be delayed in learning that the intruder, Omar Gonzalez, was about to burst through. Officers are trained that, upon learning of an intruder on the grounds, often through the alarm boxes posted around the property, they must immediately lock the front door.

After barrelling past the guard immediately inside the door, Gonzalez, who was carrying a knife, dashed past the stairway leading a half-flight up to the first family’s living quarters. He then ran into the 80-foot-long East Room, an ornate space often used for receptions or presidential addresses.

Gonzalez was tackled by a counter-assault agent at the far southern end of the East Room. The intruder reached the doorway to the Green Room, a parlor overlooking the South Lawn with artwork and antique furniture, according to three people familiar with the incident.

So, maybe only one cheer for the Secret Service. But I’m still glad they didn’t shoot him.

An Awkward Moment in the Apple Encryption Debate

So a couple of days ago I was explaining why Orin Kerr was wrong about Apple’s new policy of rendering themselves unable to encrypt customers’ iPhones, and in passing I linked with some disdain to a piece by former FBI Assistant Director Ronald T. Hosko, who was claiming, of course, that the new policy would help the bad guys.

Yesterday, however, Hosko did something that none of the anti-privacy alarmists at the NSA have ever been able to do: He gave an actual example of someone who would have been harmed by Apple’s policy. He did this in a post for the Washington Post‘s blog PostEverything titled something like “I helped save a kidnapped man from getting killed. With apple’s new encryption rules, we never would have found him.”

It was a dramatic way to make his point. It’s one thing for people like me to go on about abstract concepts like privacy rights, but I don’t have the burden of helping save the life of actual kidnap victims. In the face of Hosko’s story, the privacy argument becomes a lot harder to make. I suppose if I wrote a full response to Hosko’s piece, I would have to reiterate the dangers of a brittle security system, I would talk about the horrors of living in an all-seeing totalitarian police state, and I would point out that law enforcement officers are not free of trustworthiness issues.

The trustworthiness problem is especially relevant. You may notice I didn’t give you a link to Hoska’s article. That’s because in the time since it was originally posted, the title has been changed to “Apple and Google’s new encryption rules would make law enforcement’s job much harder,” and this note has been added at the bottom:

Editor’s note: This story incorrectly stated that Apple and Google’s new encryption rules would have hindered law enforcement’s ability to rescue the kidnap victim in Wake Forest, N.C. This is not the case. The piece has been corrected.

As near as I can tell from the rewrite, Hosko was a little confused, and it turns out the FBI got all the information they needed from the carrier, not the phone itself.

So, maybe I’ll write that longer response some day. But for now, I think I’ll just take this as an illustration of why I’m not really ready to trust these people when they say they need access to my personal data.

The People’s Climate Change

I’ve been trying to explain to my science-oriented friends who complain about climate change denial that a lot of people who have doubts about global warming are not so much anti-science as they are suspicious of scientific claims coming from people with an ideological agenda.

Imagine for a moment that your least favorite right-wing pundits — Rush Limbaugh, Glenn Beck, Ann Coulter, John Derbyshire, Michelle Malkin, whoever — all started talking about new neurological research that found racially-linked differences in brain structures which implied that people of African descent have weaker impulse control than people of European descent. And suppose they used this research to justify polices protecting white people from out-of-control black people, such as removal of black people from the military and police forces, separate schools for black and white children, and allowing businesses to refuse to serve black customers because “science has proven that black people can’t control themselves.”

Wouldn’t that sort of racist agenda make you really, really skeptical about the validity of the neuroscience they were touting? Science should, of course, be judged by scientific standards — good data, rigorous methods, peer review, repeatability — and if you have the background to understand the science, you might insist on seeing the detailed studies for yourself.

But if you, like most people, don’t have the knowledge or skills or time to evaluate the science directly, you have to rely on what more knowledgeable people are saying about it, and with a controversial subject like global warming, you have to figure out who to trust, and in trying to figure out who to trust, you’re going to end up looking at what else people stand for. And if they have an agenda you find repellant, wouldn’t you be damned suspicious of their science?

Ever since global warming started attracting attention at the end of the 1980’s, left-leaning folks have been seizing on it as a justification for their preexisting agenda. Here’s a very recent sample of what I’m talking about from this weekend’s People’s Climate March in New York:

The people interviewed here are not discussing climate change much at all. Instead we hear them saying that “corporations have to be reined in” and that they want to create a “new socialist society,” and that they want “revolution, nothing less.”

Many of the featured protesters are anti-capitalist, anti-corporation, and anti-free market. Some of them are literally communists. Some of them oppose not just capitalism, but all the benefits of modern civilization:

“We live in a grotesque era where we have everything we want, all the time, right now.”

“I think having less is actually very freeing.”

“Turn everything off.”

When you see people like this as the face of the climate change movement, you could be forgiven for wondering if maybe anthropogenic global warming is not so much an “inconvenient truth” as a suspiciously convenient theory for the radical left.

(Personally, I’ve been following some libertarian pundits and free market economists on the climate issue, because I share their values and because I know they’ll be skeptical of dire warnings of disaster that come prepackaged with claimed solutions that would further empower the government, and the argument there has long since moved on from the question of whether global warming is happening to what we should do about it.)

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.

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