May 2006

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In a previous post I linked to a short note about the early days of the AIDS epidemic.

It’s well-written, but I’d like to address a side issue that rubs me the wrong way. The author touches on it in her opening sentence:

At a time when the mere threat of avian flu or SARS can set off a coast-to-coast panic—and prompt the federal government to draw up contingency plans and stockpile medicines—it’s hard to imagine that the national response to the emergence of AIDS ranged from indifference to hostility.

This is an echo of a certain resentful tone that I’ve noticed before when people affected by AIDS discuss the public health response to other diseases. One of the commenters makes it a little clearer:

So interesting that you point that out, everyone so worried about chickens. No one cared when so many of my friends were dying each in there own individual horrible way.

Obviously, I’m not condoning indifference and outright hostility against AIDS victims. The public health system responded poorly to the early days of the AIDS epidemic. One of the things that struck me while reading Randy Shilts’s riveting And the Band Played On is the way public health officials uttered a depressing progression of statements about the emerging crisis:

  • It’s not a priority because only 5 people have died.
  • It’s not a priority because only 20 people have died.
  • It’s not a priority because only 100 people have died.
  • It’s not a priority because only 1000 people have died.

Of course, the best time to try to stop an infectious disease is before it infects a whole lot of people. It’s as if these policy makers didn’t understand the implications of the word contagious.

Actually, I think there’s a grain of truth to that. I’m pretty sure that much of the foot-dragging in the early years was due to routine bureaucratic inertia. The kinds of people that climb to the tops of government agencies by winning budget battles and currying favor with political power brokers are not necessarily the kinds of people you want in charge when something terrible happens. We had another reminder of this when hurricane Katrina struck New Orleans.

Still, I have to believe that a big part of the problem responding to AIDS was due to dislike for the types of people the disease was infecting. When people affected by AIDS get angry about that, I can’t begrudge them their feelings. The have every right to be angry and to act on that anger.

What does bother me, however, is the attitude of resentment towards the response to bird flu. The injustice here is the weak response to AIDS, not the strong response to bird flu.

[Clarification: I’m pretty sure the author of the original article doesn’t really want bird flu to receive an ineffective response. I didn’t mean to imply otherwise.]

I’ll start with the hyperbole in the comment and just point out that the big panic today is not about the birds, of course, but about the people that will get sick and die if the disease spreads to humans.

The flu we hear about every year hits most people as sniffles, coughing, fever, and soreness. But for a portion of the population—newborn babies and the elderly—influenza is a deadly disease that kills about 35,000 Americans every year. Worldwide, the annual death toll is around a quarter million. It’s the equivalent of the Indian Ocean tsunami of 2004 happening every year.

There are several active flu strains evolving from year to year, so every year we get hit by something a little different. In some years, the death toll rises to half a million. In a few years, it rises much higher.

If you asked any influenza epidemiologist about his worst-case scenario, he’d probably say it’s a repeat of the Spanish Flu pandemic of 1918. Nobody is sure how many people died, but the lowest number I’ve found is 25 million, and nobody would be surprised if it really killed twice that many.

This brings us to the reason everyone is so upset about bird flu. It’s genetically very similar to the Spanish flu. And based on the 100 or so human cases so far, the resemblance doesn’t end with DNA. Bird flu has killed 40% of the people who’ve caught it.

[Update: According to Bird Flu Breaking News there have been 229 cases of bird flu in humans, 130 of them fatal. That’s a 57% mortality rate.]

In a typical flu season, about 10% of the people in the United States come down with the flu. If the bird flu spreads to humans and follows the same infection pattern, it could kill 12 million people in this country alone.

Of course, that figure is a statistical fiction. Bird flu in humans is a rarity, so we are unlikely to have much natural immunity. The infection rate could be much higher than 10%. Then again, bird flu is presumably rare in humans due to some biological barriers. If those barriers hold, the infection rate in humans could remain tiny until the disease burns out in the avian population. Nobody knows how these factors will balance out.

Even if bird flu hits us hard, we really can’t extrapolate what will happen based on our annual experiences with flu because we can do things to fight bird flu that we would never do to fight seasonal flu. We can cancel sporting events and musical performances and movies. We can close the schools for a few months. We can shut down non-essential businesses and restrict travel. We’ve seen influenza before, and we have some pretty good ideas what to do about it.

And that’s the biggest reason you can’t compare bird flu to AIDS: We know all about bird flu, but AIDS was something new and mysterious.

We didn’t know what virus caused it, or even if it was a virus. It wasn’t even clear that it was an infectious agent. Some doctors thought it might be a side effect of some new kind of club drug. That sounds strange now, knowing what we know, but at the time everyone knew of drugs that could compromise the immune system, but no one had ever heard of a virus with that ability.

And the kind of virus it was, a retrovirus, had only been identified as a class a few years earlier. The first AIDS cases presented with mysterious diseases. It took a while to figure out that these were opportunistic diseases, and that the main problem was with the patients’ immune systems. Equipment for doing T-cell counts had only just started to become available.

It’s been 25 years since AIDS was discovered. Descriptions of influenza have been found that date back 2500 years. It’s an old enemy that we have learned how to fight.

I imagine that someday, eventually, AIDS will be an old enemy too. There will be ever-improving treatments for those infected, and a vaccine to protect those who aren’t. AIDS will become just another once-deadly disease being held in check by medical science.

And maybe someday epidemiologists in Africa will spot a dangerous new strain of HIV emerging among the simian population and crossing over to humans. And maybe this strain will be just different enough from the known strains that our vaccines and treatments might not work as well as we’re used to. That’s pretty much what’s going on with bird flu right now. Let’s hope that any such new strain of HIV is handled like bird flu and not like AIDS was handled the first time it emerged.

Yesterday we went to see the new X-Men movie. The movie was pretty good, but the really amazing part was that we got the closest possible parking space to the theater. The only closer space was handicapped parking.

After the movie we went to dinner and this time we got the parking space right in front of the restaurant door.

Normally when I get good parking, I quip that the parking space gods have smiled on me. Hey if the Romans had a god of boundaries and border markers—Terminus—why can’t there be a god of parking?

But then it hit me: Maybe finding good parking spaces is my mutant power! Now all I need is a mutant name. Parking Man is too campy, it sounds like a DC character, not Marvel. How about Spaceman? Still campy, but with a touch of irony.

Later, on the way home, I wondered if Roman Catholics have a saint for finding good parking spaces. They seem to have one for everything else. There must be a saint for migrants, looking for a place to settle. How hard would it be to adapt him or her for finding parking spaces?

Update: I looked it up. Of course there’s a saint for finding good parking places. That would be Mother Cabrini, also the patron saint for immigrants.

Alexandra Billings has a moving account of the early days of the AIDS pandemic here in America:

At a time when the mere threat of avian flu or SARS can set off a coast-to-coast panic–and prompt the federal government to draw up contingency plans and stockpile medicines–it’s hard to imagine that the national response to the emergence of AIDS ranged from indifference to hostility. … People with the disease were routinely evicted from their homes, fired from jobs and denied health insurance. Gays were demonized by the extreme right wing: Reagan adviser Pat Buchanan editorialized in 1983, “The poor homosexuals–they have declared war against nature, and now nature is exacting an awful retribution.” In much of the rest of the culture, AIDS was simply treated as the punch line to a tasteless joke: “I just heard the Statue of Liberty has AIDS,” Bob Hope quipped during the rededication ceremony of the statue in 1986. “Nobody knows if she got it from the mouth of the Hudson or the Staten Island Fairy.” Across the river in Manhattan, a generation of young adults was attending more funerals than weddings.

I almost died. I was in the hospital and my doctor told me to call my parents and arrange the funeral. Chrisanne did just that. We were arranging my funeral as I lay in my hospital bed with my blue checkered gown wetting myself and sweating so bad they were changing my beddings three times a night. I was 35 years old. I had already been infected since the late eighties. The tip of the disease. I lived long enough, stayed away from the hospital just long enough to watch every single one of my friends waste away to ash. I had seen more death before I was 40 than anyone in my family.

Read the whole thing.

In my continuing attempts to reach out to our nation’s youth (’cause, you know, they’re the future) I’ve decided to sign up for AOL Instant Messenger, or just AIM as it’s called these days.

If I’m signed into AIM right now, and I’m not away from my PC, you should see a message near the top of the right-hand column that looks something like this:

AIM id Windypundit is now online

I set that up a few days ago, but no one has contacted me…until last night. I was getting ready to run an errand, so I clicked on the AIM bar and set my status to away. When I glanced at the Windows task bar, however, I noticed that there were task buttons for two AIM windows. I clicked on the other one, and sure enough, even though I had heard nothing, there was a message for me:

SomethingSheepLove: yo

The fateful moment had come. My first out-of-the-blue instant message ever. (I’ve disguised the AIM screen name, but the real one did say something about sheep and love.) I closed the window without saving the message, so I’m reconstructing it from memory, but it went a bit like this:

SomethingSheepLove: yo
Windypundit: hi
SomethingSheepLove: I like your photos
Windypundit: Thanks
SomethingSheepLove: Do you sell them?
Windypundit: No I’m an amateur
SomethingSheepLove: Cool
Windypundit: What brings you to my page?
SomethingSheepLove: Photography
Windypundit: I gotta go
SomethingSheepLove: Bye
Windypundit: Bye

That wasn’t so bad. I had expected something more like this:

CoolYoungPerson: yo
Windypundit: hi
CoolYoungPerson: CZ4 XQ R84Z?
Windypundit: I don’t understand
CoolYoungPerson: LUSR

It’s a little weird being contacted by someone I don’t know and don’t expect. I wanted to see if I could find out more about this person. I don’t know anything about AIM, but there’s got to be some kind of user profile page, right? So I double-click on their screen name, and it shows up in a little search box at the bottom of the chat window. So I clicked the “Go” button to see if that would show me a profile.

No such luck. It turns out this is just a Google web search. But it does find the MySpace page where my mysterious chat buddy mentions their AIM screen name. I click on the search result to visit the page.

It’s a 17-year old girl.

MySpace is full of people looking for a hook-up, so this makes me feel just a little bit creepy somehow… On the other hand, (1) I’m not on MySpace for dating (as I’m sure my wife will be pleased to read), (2) she’s getting ready to go to college so it’s not like she’s a child, (3) she contacted me, and (4) she’s 800 miles away. Nothing creepy here.

Now that that was settled, I figured that since she complimented my photography, I should send her an invitation to be one of my MySpace friends. I did so, and I got up to leave.

This time I heard the AIM chime as the chat message arrived:

SomethingSheepLove: How did you find me?
Windypundit: [I explained what I did]
SomethingSheepLove: Why would you search for me? That’s creepy.

Now I’ve gone from the cool photography guy to the creepy guy in five minutes. This blog doesn’t have much personal information about me, so I guess when she found my photos, she didn’t realize I was in my 40s. Most of her online friends are young ladies like herself, so when this middle-aged guy suddenly tracks her down and wants to be her friend…

You know, I like to think that I have a few dangerous ideas here on Windypundit, and if I can convert some of our nation’s youths to those ideas, all the better. But this was not a good start.

I apologized for creeping her out, and she said goodbye.

(You know, I can’t believe I didn’t have a Television Department until now. How could I not have realized the importance of having a Television Department?)

Spoilers for the 24 season finale after the jump.


Somehow, the Federal Communications Commission thinks it has the authority to tell every American what software they are or are not allowed to run on their computers.

According to the three-page document, to preserve the openness that characterizes today’s Internet, “consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.”

The FCC didn’t offer much in the way of clarification. But the clearest reading of the pronouncement is that some unelected bureaucrats at the commission have decreeed that Americans don’t have the right to use software such as Skype or PGPfone if it doesn’t support mandatory backdoors for wiretapping.

(Hat tip: Ken Lammers)

Last year, the California government had a really great idea. (No, that’s not the start of a joke.) Many California taxpayers have income only from regular employment and don’t have any unusual deductions. This means that their state income taxes can be calculated entirely from the payroll data already in the state’s tax database.

As part of a pilot program, California sent 50,000 taxpayers something called a “ReadyReturn,” which was essentially a California income tax return with all the information already filled in. All the taxpayers had to do was sign it and mail it back. So, taxpayers save time because they don’t have to fill in the form, and the state saves time because all the data on the form is already in their tax database so there’s no need to enter it again. Great idea, huh? Who could be against that?

As it turns out, lobbyists from the tax preparation industry are against that. They’ve got several members of the state legislature to oppose it.

Yes, you heard right. They’re lobbying the government to make your life more difficult so they can sell you services to make your life easier. I’ll bet this isn’t the first time, either. I’ll bet those bastards have been doing this for years. It would certainly explain a lot of things about my taxes…

Whole ugly story here.

(Hat tip: The Agitator.)

My wife has developed a taste for snacking on Edamame (fresh ripe soybeans that have been parboiled and frozen) which we usually get with take-out sushi. She wanted some for tonight, so since we were in the neighborhood, we decided to check out the Mitsuwa Marketplace in Arlington Heights.

We found what we came for, but not much else. It’s not that they had a small selection—quite the opposite—but Mitsuwa just isn’t intended for people like us. We’re Americans who are interested in a taste of Japanese food, but we don’t know a lot about it. I guess what we wanted was an ethnic grocery, where the food is foreign, but it’s marketed and explained to us natives.

A place like Mitsuwa, however, is clearly intended for Japanese people who are looking for a taste of food from the old country. Most of the food had only Japanese labels, and even when there were American labels it didn’t help much, because we haven’t got a clue what the food is or how to prepare it.

I’m sure the food is superb, and if you already know all about Japanese cooking, this is the place for you.

As for my wife and I, next time we’ll just visit the ethnic foods aisle at Jewel.

Radley Balko has an article on the FOXNews site about politicians trying to look like they’re doing something about high gas prices. I agree with his basic premise, which is that high has prices are mostly the result of natural market forces and that any attempt to fiddle with them is likely to cause more harm than good. That’s sound economics.

An important exception arises if the oil companies are able to work together as a cartel to fix prices. It’s here that Balko makes a mistake:

People buy less of a good when it’s more expensive. When gas is expensive, for example, we cut back on driving. We walk, or take public transportation. Which means the oil companies sell less gas. If the oil companies are colluding to keep prices high, then, it’s to their own detriment.

That’s just wrong. To see why, let’s use some made-up numbers: Suppose gas is selling for $3 per gallon but only costs $2 per gallon to make, for a profit of $1 per gallon. If people buy a billion gallons a week, that’s a billion dollars in profit per week for the gasoline industry.

Now suppose all the companies get together and decide to raise their prices at the same time to $4/gallon and keep it there. If customers don’t change their buying habits, they’ll buy $4 billion worth of gasoline per week that only costs the companies $2 billion per week to make. The gasoline industry will double its profits to $2 billion per week.

Balko correctly realizes that won’t happen. Customers will adjust their buying habits and reduce the amount of gas they use, so oil companies won’t sell a billion gallons anymore. For example, people might reduce gas consumption by 10% to 900 million gallons per week, so oil company profits will only be $1.8 billion per week. In other words, if the oil companies raise prices, they will earn more per gallon but sell fewer gallons, so a doubling of per-gallon profit won’t double industry profits. However, the oil companies will still be making more profit than before the price increase.

In order for increased sales prices to actually hurt the oil companies as Balko says, sales volume would have to fall far enough to result in a lower profits despite the increased profit per gallon. With the numbers I’m using here, gasoline consumption would have to fall by more than half—to less than 500 million gallons per week—so sales are less than $2 billion and therefore profits are less than $1 billion.

The real world is obviously different from the numbers I’ve made up here, yet everyone who has studied the oil and gas markets agrees that consumers don’t respond much to increases in price. Clearly there must be some price at which demand will fall enough to reduce profits, but nobody believes we’re close to that now. For proof, we only need to look at how the prices increases of the past year have affected consumer demand for gas: The reduction in demand is barely detectable. And oil company profits are at an all time high.

We got hit with a hailstorm late this afternoon. I was too slow to get a picture while it was falling, but this is what the parking lot looked like minutes later.

Hail in the Parking Lot
Larger ImageHail in the Parking Lot

No damage to the car, as far as I can tell, but the alarm went off.

Update: And another:

Hail Between the Buildings
Larger ImageHail Between the Buildings

Wow. I have got to start reading the Weekly Standard more often. Heather Mac Donald has an editorial there titled “Information Please.” It’s a defense of the NSA collection of phone records, and it is both self-righteous and misinformed at the same time. I thought only us bloggers were supposed to post stuff like that.

I stumbled across this editorial thanks to Lindsay Beyerstein who takes exception to the to the pull-quote at the top of the article: “Only a paranoid solipsist could feel threatened by the calling analysis program.”

Lindsay is philosopher, and she finds this amusing. Solipsism is a form of extreme skepticism based on the fact that all you know about the world is what your mind knows. The world as you know it is only known in your mind. So how do you know it’s really out there? A solipsist would say there’s no proof that it is, and might even say that there is no outside world at all. It’s all in your mind.

The point is that if anyone really is a solipsist, he certainly wouldn’t be paranoid that other people are spying on him because he doesn’t believe there are other people. I guess Mac Donald knew solipsists think they are the center of the universe, and therefore figured it was just a synonym for selfish. [And, to be fair, that is a common usage.]

Fortunately for me, the stupidity doesn’t end at the pull-quote. It permeates the piece. Let me serve up a few more choice morsels:

Since late 2001, Verizon, BellSouth, and ATT have connected nearly two trillion calls, according to the Washington Post. The companies gave NSA the incoming and outgoing numbers of those calls, stripped of all identifying information such as name or address.

That last sentence is pretty disingenuous. The information may be stripped of “identifying information such as name or address”, but it’s ridiculous to pretend the phone numbers aren’t identifying information. The government can easily ask for name and address later. Or they can just Google them like I do.

I’ve emailed the Weekly Standard and asked Ms. Mac Donald to give me her home phone number. I’m sure she’ll be sending that along any minute now.

No conversational content was included. The NSA then put its supercharged computers to work analyzing patterns among the four trillion numbers involved in the two trillion calls, to look for clusters that might suggest terrorist connections. Though the details are unknown, they might search for calls to known terrorists, or, more speculatively, try to elicit templates of terror calling behavior from the data.

No they won’t “search for calls to known terrorists.” If the NSA has the phone numbers of known terrorists, they can just just ask the phone companies for the terrorists’ phone records. This is simply not how data mining works.

As a practical matter, no one’s privacy is violated by such analysis. Memo to privacy nuts: The computer does not have a clue that you exist; it does not know what it is churning through; your phone number is meaningless to it.

Memo to authoritarian nuts: Us “privacy nuts” aren’t worries about the computers, we’re worried about the people who control the computers.

The press loves to stress the astounding volume of data that data mining can consume—the Washington Post’s lead on May 12 warned that the administration had been “secretly…assembling gargantuan databases.” But it is precisely the size of that data store that renders the image of individualized snooping so absurd.

No it doesn’t. Mac Donald is speaking gibberish that sounds good to her, like some character on 24. Pulling individual data out of a database that size isn’t hard, especially if it is pre-processed for easy querying.

It’s not that big either. By my back-of-the-envelope calculation, you’d need about 50 terabytes of storage to hold it all. To put that in perspective, a photo sharing site like smugmug has 100 terabytes of photos. (Heck, my wife and I combined have about 1.5 terabytes of disk storage in our home computers.) For a hardware cost of $1 million, the NSA could keep 10 copies churning out about 1000 individual queries a second.

As a constitutional matter, no one’s privacy is violated by such automated analysis of business records.

As a constitutional matter, no one’s privacy is violated by a middle-aged man in the park taking leering photographs of all the prepubescent boys. That doesn’t mean we shouldn’t be upset about it. Just because something is constitutional, doesn’t mean it’s a good idea.

After 9/11, a phone executive who didn’t believe that the country was in danger of another catastrophic attack was seriously out of touch with reality. And the volume of data requested almost by definition protects the privacy of any individual customer.

9/11 was 4 1/2 years ago. It’s absurd to believe that a condition of emergency still exists. To put it another way, there is always a chance of another catastrophic attack, so the rules we come up with should balance the risk of an attack against the cost of losing some of our freedom.

And as I explained before, the volume of data doesn’t protect individual data at all. Heather Mac Donald should be able to figure that out for herself without being an Information Technology professional like me: All she has to do is get a phone bill every month. Clearly, the phone companies can identify individual behavior, so the NSA should have no trouble.

The Washington Post calls this numbers analysis the “most extensive…domestic surveillance [program] yet known involving ordinary citizens and residents.” Bunk. The NSA‘s data mining program is not surveillance; no one is being listened to or observed.

Now she’s playing word games. People make calls, and an uninvolved third party (the NSA) is finding out about them. If she doesn’t want to call that surveillance, how about we call it spying?

Data mining looks for mathematical patterns in computerized information; it is not a real-time spying operation.

If it’s not real-time, then there isn’t any time pressure for the NSA to obtain the data. This is justification for more judicial oversight, not less.

The government didn’t need to go to the Foreign Intelligence Surveillance Court for a wiretap or pen register order (which governs the collection of phone numbers in real time from a single phone) because it is not listening to or recording any individual’s calls. FISA is built around the notion of an individualized investigation of specific spies or terrorists; it is seriously outdated for the application of American computer know-how to ferret out terror plots before they happen and before the government has individual suspects in mind.

So spying on one person requires a court order, but spying on 280 million of them doesn’t?

Also, actual pen registers haven’t been used for many years because they only work on rotary dial phones (ask your parents, kids). When cops get an order to get numbers, they get them from the phone company, just like the NSA does. Why shouldn’t the NSA have to follow the same rules?

But it may be too late to convey these truths. The time to explain how data mining protects privacy while providing a crucial tool against unknown mass-murderers was while the Pentagon’s Total Information Awareness program was under attack.

Well Ms. Mac Donald, why don’t you take a crack at explaining how data mining could be used for this? Go ahead, enlighten us!

Cooperation between the private sector and intelligence agencies is crucial for uncovering terrorist plots. After 9/11, JetBlue Airways and Northwest Airlines offered privacy-protected passenger records to NASA and the Pentagon for research to see if data-mining could aid in identifying terrorist flight behavior. No passenger’s privacy was violated, yet these two companies now face hundreds of billions of dollars in privacy lawsuits. The class action bar is undoubtedly gearing up for a similar assault on ATT, Verizon, and BellSouth, an abuse of tort law that will further discourage patriotic corporate behavior.

Every company named in the previous paragraph had a statutory or contractual obligation to protect customer privacy. They decided to break the law or break their promises or both, and now they will suffer the consequences in court. All of their troubles could have been avoided if the government had simply gotten a court order for the data. Nobody can be sued for properly obeying a court order.

It seems pretty clear that Heather Mac Donald has no real idea what data mining is or how it works. All she knows is that it takes a lot of data, that the Bush administration wants to do it, and that people she doesn’t like are opposed to it. I’m not too familiar with the Weekly Standard, but I hope they usually demand more thought from their editorialists.

I’ve slacked off on the blogging over the past couple of months because I’ve been kind of busy, but I’ll try to speed up again. Google Analytics claims that I have about a dozen or so regular readers, so to you folks, I apologize.

Unfortunately, the story that the NSA is getting all our call records has me nearly speechless.

I fully support government surveilance of known or strongly suspected terrorists or criminals. Those people should be captured, and surveilance is a necessary part of doing so.

However, I’m a lot more troubled by government surveilance when there’s no individualized suspicion. There may well be some theoretical benenfit to NSA data gathering, some statistical chance of finding real miscreants, but I don’t believe it’s worth the effort or the intrusion into people’s lives. Basically, I just think the government should be more respectful of people’s privacy and not violate it for reasons that are unlikely to yield a net benefit to the public.

I’m also concerned about the frequent abuse of this kind of surveilance. It’s real easy for government spies to slide down that slippery slope and start seeing everyone they don’t like as a potential enemy of the state. Rather than trying to maximize the number of bad guys they catch, they spy on people they hate, in the hope of catching them doing something bad. The classic example of this is the surveilance of civil rights groups back in the 1960s.

This latest surveilance effort by the NSA (according to news reports) is even worse. They’re not just spying on people they don’t like, they’re spying on everone.

(As I’m writing this piece, my wife received a phone call from my mother. Someday, perhaps even today, the NSA will get a record of that call.)

Or maybe I’m wrong there. Maybe they are spying on people they hate. Maybe they hate all of us.

One of the big stories in the news these days is that the National Security Agency (NSA) is apparently collecting information about millions of telephone calls made by Americans since 9/11.

They’re apparently trying to get source and destination phone numbers as well as call time and duration for every phone call made in the United States, presumably to do some kind of data mining and social network analysis.

Many of the major telephone providers have apparently cooperated with them, even though disclosure of what’s called Customer Proprietary Network Information (CPNI) is strictly regulated by federal law, and the NSA has not been obtaining court orders for this information.

My telephone company, SBC, was recently taken over by ATT, which is specifically named in the news stories. So…

Dear Sir or Madam,

I am an SBC customer, and I’m disturbed by the recent news reports indicating that ATT (among others) has turned over information about their customers’ calling patterns to the National Security Agency. I would like to find out more about that.

First of all, do you have a statement on the matter? I tried searching your customer support database for “NSA” and “National Security Agency” and found nothing pertinent.

Second, what specific information about my calling patterns does your company maintain and for how long? How do I get a copy of the records?

Third, what specific information about my account have you have disclosed to the NSA, and how do I get a copy of those records?

As I understand your Privacy Policy, you should not disclose CPNI to government agencies without a court order (except when reporting fraud or providing 911 service or similar situations). Yet your company is specifically named in several of the news reports, and those reports make clear that no court order was used.

I would appreciate your clarification of this matter.

Thank you,

— Mark Draughn, customer account 773-[redacted]

I’ll post their response, if any.

Ken Lammers is discussing the conflict of interest that exists between a criminal defendant and his court-appointed attorney when there is a cap on the fee for the case. Put simply, once the attorney has worked enough on the case to hit the cap, he’s working for free. That gives him a strong incentive to bring the case to a swift close by mounting a weak defense or encouraging his client to plead guilty.

Ken takes a lot court-appointed indigent defense cases, and he doesn’t like that argument:

Does the defendant have a valid argument? The claim that he cannot trust the defense attorney’s advice is not valid. It assumes bad faith and unethical behavior on the part of the defense attorney. I spend much of my time interacting with people who make their living doing indigent defense and we talk about our trials. I’ve never heard, and do not suspect, that any of them tell their clients to plead guilty because of the loss they will incur if the client chooses to go to trial.

I don’t think Ken knows what he’s talking about. Oh, I’m sure he’s right about the legal issues, but I’m equally sure he’s wrong when he implies that fee caps are not an incentive to rush the defense. I’m pretty sure they are.

If Ken or anybody else doing court-appointed defense is reading this, they’re probably steamed at me right now, because they hate hearing this accusation. They always insist that they treat their indigent defense clients just like their paying clients. And maybe some of them are right about their own behavior. I can’t see into their hearts. But I’m quite sure they’re wrong about defense attorneys as a statistical group.

The reason for my certainty is simple economics: If defense attorneys don’t change their behavior in response to incentives, they’re unique among all humankind.

Consider this: If you touch something that hurts you, you’ll flinch away from it. This is a reflexive response that happens mostly within the nervous system. No higher-order brain function is involved in causing the flinch. Yet experiments have shown that if you hand someome a cup of coffee that is unexpectedly hot, they will be significantly less likely to drop it if you first tell them it’s an expensive cup. Somehow the knowledge of the cost moderates their reflexes.

Or consider that economists have long predicted that driving behavior responds to incentives just like anything else in economics: People buy more of something if the price goes down. One of the major costs of reckless driving is injury in car accidents, and if you reduce the chance of injury, people will respond by driving more recklessly. Econometric studies have shown that this is more than just theory: People in cars with seat belts (and later air bags) get into more accidents than people without them (even controlling for things like age and prior driving record).

If people respond to incentives in such disparate situations, I think it’s realistic to assume that defense attorneys are not exempt from the effects of incentives.

I don’t know enough about lawyering to say how they respond in any detail, but I can guess that in general they make a series of time-and-cost saving decisions in gray areas where there are no clear rules. Should they spend one more hour researching the law? Or one more hour trying to find a witness? Should they make one more trip to interview their client? These little decisions will add up, and they will change the lawyer’s estimation of how winnable the case is. And then the client will make his own decision about what to do based on the lawyer’s estimation.

Understand, I’m not saying that defense lawyers are being unethical, and I’m certainly not taking a side on whether the courts should take notice of this behavior. I’m just saying that lawyers will respond to the incentives they encounter, just like everyone else.